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SCIENTIA
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St.QUÆRIS.PENINSULAM-AMENAM
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FULULAULUVULIWWW.
VVV.JULI
LIBRARY OF
LAWRENCE B. EVANS
PH.B.
CLASS OF 1894.
1
Allan
THE GIFT OF
GRACE L.AND ABBYL, SARGENT
3 TLo
.R4
ADDRESSES ON
INTERNATIONAL SUBJECTS
BY
ELIHU ROOT
COLLECTED AND EDITED BY
ROBERT BACON
AND
JAMES BROWN SCOTT
VERO
TAS
CAMBRIDGE
HARVARD UNIVERSITY PRESS
LONDON: HUMPHREY MILFORD
OXFORD UNIVERSITY PRESS
1916
COPYRIGHT, 1916
HARVARD UNIVERSITY PRESS
و به نام بی من نمو و درهم در بازار
3-10-31
CONTENTS
PAGE
vii
3
7
25
.
33
INTRODUCTORY NOTE
THE NEED OF POPULAR UNDERSTANDING OF INTERNA-
TIONAL LAW .
An Article contributed to the first issue of the American
Journal of International Law, 1907.
THE REAL QUESTIONS UNDER THE JAPANESE TREATY AND
THE SAN FRANCISCO SCHOOL BOARD RESOLUTION.
Presidential Address at the first annual meeting of the Ameri-
can Society of International Law, Washington, D. C., April
19, 1907.
THE SANCTION OF INTERNATIONAL LAW .
Presidential Address at the second annual meeting of the
American Society of International Law, Washington, D. C.,
April 24, 1908.
THE RELATIONS BETWEEN INTERNATIONAL TRIBUNALS OF
ARBITRATION AND THE JURISDICTION OF NATIONAL
COURTS
Presidential Address at the third annual meeting of the
American Society of International Law, Washington, D. C.,
April 23, 1909.
THE BASIS OF PROTECTION TO CITIZENS RESIDING ABROAD
Presidential Address at the fourth annual meeting of the
American Society of International Law, Washington, D. C.,
April 28, 1910.
THE FUNCTION OF PRIVATE CODIFICATION IN INTERNA-
ŢIONAL LAW
Presidential Address at the fifth annual meeting of the
American Society of International Law, Washington, D. C.,
April 27, 1911.
THE REAL SIGNIFICANCE OF THE DECLARATION OF LONDON
Presidential Address at the sixth annual meeting of the
American Society of International Law, Washington, D. C.,
April 25, 1912.
FRANCIS LIEBER
Presidential Address at the seventh annual meeting of the
American Society of International Law, Washington, D. C.,
April 24, 1913.
43
57
73
89
iv
CONTENTS
105
THE REAL MONROE DOCTRINE
Presidential Address at the eighth annual meeting of the
American Society of International Law, Washington, D. C.,
April 22, 1914.
ADDRESS AT A CONFERENCE OF TEACHERS OF INTERNA-
TIONAL LAW
Opening Remarks at a conference held in Washington, D.C.,
April 23-25, 1914, under the auspices of the American Society
of International Law.
125
129
145
THE HAGUE PEACE CONFERENCES
Address in the National Arbitration and Peace Congress,
New York, April 15, 1907.
THE IMPORTANCE OF JUDICIAL SETTLEMENT
Opening Address at the International Conference of the
American Society for Judicial Settlement of International
Disputes, Washington, D.C., December 15, 1910.
NOBEL PEACE PRIZE ADDRESS
A Speech prepared in acceptance of the Nobel Peace Prize of
1912.
153
175
THE ETHICS OF THE PANAMA QUESTION
Address before the Union League Club of Chicago, February
22, 1904.
THE OBLIGATIONS OF THE UNITED STATES AS TO PANAMA
CANAL TOLLS.
Address in the Senate of the United States, January 21, 1913.
PANAMA CANAL TOLLS.
Speech in reply in the Senate of the United States, May 21,
,
1914.
207
241
313
THE TREATY OF 1832 WITH RUSSIA .
Address in the Senate of the United States, December 19,
1911.
327
THE MEXICAN RESOLUTION
Address in the Senate of the United States, April 21, 1914.
THE SHIP PURCHASE BILL
An Address delivered in the United States Senate, January 4,
1915.
337
341
SECOND SPEECH ON THE SHIP PURCHASE BILL .
An Address delivered in the United States Senate, January 25,
1915.
CONTENTS
V.
391
THE OUTLOOK FOR INTERNATIONAL LAW .
Presidential Address at the ninth annual meeting of the
American Society of International Law, Washington, D. C.,
December 28, 1915.
405
SHOULD INTERNATIONAL LAW BE CODIFIED ?
Address at the joint meeting of the Subsection on Interna-
tional Law of the Second Pan-American Scientific Congress,
Washington, D. C., December 30, 1915.
THE DECLARATION OF THE RIGHTS AND DUTIES OF NATIONS
OF THE AMERICAN INSTITUTE OF INTERNATIONAL LAW
Presidential Address at the tenth annual meeting of the
American Society of International Law, Washington, D. C.,
April 27, 1916.
413
427
FOREIGN AFFAIRS, 1913-1916.
Address as Temporary Chairman of the New York Republican
State Convention, New York, February 15, 1916.
INDEX
449
INTRODUCTORY NOTE
The collected addresses and state papers of Elihu Root, of
which this is one of several volumes, cover the period of his
service as Secretary of War, as Secretary of State, and as
Senator of the United States, during which time, to use his
own expression, his only client was his country.
The many formal and occasional addresses and speeches,
which will be found to be of a remarkably wide range, are
followed by his state papers, such as the instructions to
the American delegates to the Second Hague Peace Confer-
ence and other diplomatic notes and documents, prepared
by him as Secretary of State in the performance of his duties
as an executive officer of the United States. Although the
official documents have been kept separate from the other
papers, this plan has been slightly modified in the volume
devoted to the military and colonial policy of the United
States, which includes those portions of his official reports as
Secretary of War throwing light upon his public addresses and
his general military policy.
The addresses and speeches selected for publication are
not arranged chronologically, but are classified in such a way
that each volume contains addresses and speeches relating
to a general subject and a common purpose. The addresses
as president of the American Society of International Law
show his treatment of international questions from the
theoretical standpoint, and in the light of his experience as
Secretary of War and as Secretary of State, unrestrained and
uncontrolled by the limitations of official position, whereas
his addresses on foreign affairs, delivered while Secretary of
State or as United States Senator, discuss these questions
under the reserve of official responsibility.
Yii
vili
INTRODUCTORY NOTE
Mr. Root's addresses on government, citizenship, and
legal procedure are a masterly exposition of the principles
of the Constitution and of the government established by
it; of the duty of the citizen to understand the Constitu-
tion and to conform his conduct to its requirements; and
of the right of the people to reform or to amend the Con-
stitution in order to make representative government more
effective and responsive to their present and future needs.
The addresses on law and its administration state how legal
procedure should be modified and simplified in the interest
of justice rather than in the supposed interest of the legal
profession.
The addresses delivered during the trip to South America
and Mexico in 1906, and in the United States after his return,
with their message of good will, proclaim a new doctrine
the Root doctrine — of kindly consideration and of honorable
obligation, and make clear the destiny common to the
peoples of the Western World.
The addresses and the reports on military and colonial
policy made by Mr. Root as Secretary of War explain the
reorganization of the army after the Spanish-American War,
the creation of the General Staff, and the establishment of the
Army War College. They trace the origin of and give the
reason for the policy of this country in Cuba, the Philippines,
and Porto Rico, devised and inaugurated by him. It is not
generally known that the so-called Platt Amendment,
defining our relations to Cuba, was drafted by Mr. Root, and
that the Organic Act of the Philippines was likewise the work
of Mr. Root as Secretary of War.
The argument before The Hague Tribunal in the North
Atlantic Fisheries Case is a rare if not the only instance of a
statesman appearing as chief counsel in an international
arbitration, which, as Secretary of State, he had prepared
and submitted.
INTRODUCTORY NOTE
ix
The political, educational, historical, and commemorative
speeches and addresses should make known to future genera-
tions the literary, artistic, and emotional side of a statesman
of our time, and the publication of these collected addresses
and state papers will, it is believed, enable the American
people better to understand the generation in which Mr. Root
has been a commanding figure and better to appreciate
during his lifetime the services which he has rendered to
his country.
ROBERT BACON.
JAMES BROWN SCOTT.
APRIL 15, 1916.
ADDRESSES ON
INTERNATIONAL SUBJECTS
THE NEED OF POPULAR UNDERSTANDING
OF INTERNATIONAL LAW
At the eleventh annual meeting of the Lake Mohonk Conference on Inter-
national Arbitration the advisability of forming an American society of international
law was considered on June 2, 1905, by those gentlemen present who were interested
in international law as such. The idea was approved and a committee was appointed
to take the necessary steps. On January 12, 1906, the American Society of Inter-
national Law was organized in the rooms of the Bar Association of the City of New
York. A constitution was adopted and officers selected. Mr. Root was elected the
first president of the Society, and he has since been continued in that position. To
the first issue of the American Journal of International Law (1907), the organ
of the Society, Mr. Root contributed the following article:
THE
HE increase of popular control over national conduct,
which marks the political development of our time,
makes it constantly more important that the great body of
the people in each country should have a just conception
of their international rights and duties.
Governments do not make war nowadays unless assured of
general and hearty support among their people; and it some-
times happens that governments are driven into war against
their will by the pressure of strong popular feeling. It is not
uncommon to see two governments striving in the most con-
ciliatory and patient way to settle some matter of difference
peaceably, while a large part of the people in both countries
maintain an uncompromising and belligerent attitude, in-
sisting upon the extreme and uttermost view of their own
rights in a way which, if it were to control national action,
would render peaceable settlement impossible.
One of the chief obstacles to the peaceable adjustment of
international controversies is the fact that the negotiator or
arbitrator who yields any part of the extreme claims of his
own country and concedes the reasonableness of any argu-
ment of the other side is quite likely to be violently con-
3
4
INTERNATIONAL SUBJECTS
demned by great numbers of his own countrymen who have
never taken the pains to make themselves familiar with the
merits of the controversy or have considered only the argu-
ments on their own side. Sixty-four years have passed since
the northeastern boundary between the United States and
Canada was settled by the Webster-Ashburton Treaty of
1842; yet to this day there are many people on our side of the
line who condemn Mr. Webster for sacrificing our rights, and
many people on the Canadian side of the line who blame
Lord Ashburton for sacrificing their rights, in that treaty.
Both sets of objectors cannot be right; it seems a fair infer-
ence that neither of them is right; yet both Mr. Webster and
Lord Ashburton had to endure reproach and obloquy as the
price of agreeing upon a settlement which has been worth to
the peace and prosperity of each country a thousand times as
much as the value of all the territory that was in dispute.
In the great business of settling international controversies
without war, whether it be by negotiation or arbitration,
essential conditions are reasonableness and good temper, a
willingness to recognize facts and to weigh arguments which
make against one's own country as well as those which make
for one's own country; and it is very important that in
every country the people whom negotiators represent and to
whom arbitrators must return, shall be able to consider the
controversy and judge the action of their representatives in
this instructed and reasonable way.
One means to bring about this desirable condition is to
increase the general public knowledge of international rights
and duties and to promote a popular habit of reading and
thinking about international affairs. The more clearly the
people of a country understand their own international
rights the less likely they are to take extreme and extrava-
gant views of their rights and the less likely they are to be
ready to fight for something to which they are not really
NEED OF POPULAR UNDERSTANDING
5.
entitled. The more clearly and universally the people of a
country realize the international obligations and duties of
their country, the less likely they will be to resent the just
demands of other countries that those obligations and duties
be observed. The more familiar the people of a country are
with the rules and customs of self-restraint and courtesy
between nations which long experience has shown to be in-
dispensable for preserving the peace of the world, the greater
will be the tendency to refrain from publicly discussing con-
troversies with other countries in such a way as to hinder
peaceful settlement by wounding sensibilities or arousing
anger and prejudice on the other side.
In every civil community it is necessary to have courts to
determine rights and officers to compel observance of the law;
yet the true basis of the peace and order in which we live is
not fear of the policeman; it is the self-restraint of the thou-
sands of people who make up the community and their will-
ingness to obey the law and regard the rights of others. The
true basis of business is not the sheriff with a writ of execu-
tion; it is the voluntary observance of the rules and obliga-
tions of business life which are universally recognized as
essential to business success. Just so while it is highly
important to have controversies between nations settled by
arbitration rather than by war, and the growth of sentiment
in favor of that peaceable method of settlement is one of the
great advances in civilization to the credit of this generation;
yet the true basis of peace among men is to be found in a just
and considerate spirit among the people who rule our modern
democracies, in their regard for the rights of other countries,
and in their desire to be fair and kindly in the treatment of
the subjects which give rise to international controversies.
Of course it cannot be expected that the whole body of any
people will study international law; but a sufficient number
can readily become sufficiently familiar with it to lead and
6
INTERNATIONAL SUBJECTS
form public opinion in every community in our country upon
all important international questions as they arise.
For these reasons it seems to me that the influence of the
new American Society of International Law and the publica-
tion of its Quarterly will be of practical benefit to the people
of the United States; and I commend the Association and
the Quarterly to the support of thoughtful men and women
who wish to help in promoting the cause of international
justice and peace.
THE REAL QUESTIONS UNDER THE JAPAN-
ESE TREATY AND THE SAN FRANCISCO
SCHOOL BOARD RESOLUTION
PRESIDENTIAL ADDRESS AT THE FIRST ANNUAL MEETING OF
THE AMERICAN SOCIETY OF INTERNATIONAL LAW
WASHINGTON, D.C., APRIL 19, 1907
I
N opening this meeting of the American Society of In-
ternational Law, which I hope will be the first of many
meetings in unbroken succession to continue long after we
personally have ceased to take part in affairs, let me welcome
you to the beginning of your labors for a more thorough
understanding of this important and fascinating subject. It
is impossible that the human mind should be addressed to
questions better worth its noblest efforts, offering a greater
opportunity for usefulness in the exercise of its powers, or
more full of historical and contemporary interest, than in
the field of international rights and duties. The change in the
theory and practice of government which has marked the
century since the establishment of the American Union has
shifted the determination of great questions of domestic na-
tional policy from a few rulers in each country to the great
body of the people, who render the ultimate decision under
all modern constitutional governments. Coincident with
that change the practice of diplomacy has ceased to be a
mystery confined to a few learned men who strive to give
effect to the wishes of personal rulers, and has become a rep-
resentative function answering to the opinions and the will
of the multitude of citizens, who themselves create the rela-
tions between states and determine the issues of friendship
and estrangement, of peace and war. Under the new system
7
8
INTERNATIONAL SUBJECTS
there are many dangers from which the old system was free.
The rules and customs which the experience of centuries had
shown to be essential to the maintenance of peace and good
understanding between nations have little weight with the
new popular masters of diplomacy; the precedents and agree-
ments of opinion which have carried so great a part of the
rights and duties of nations toward each other beyond the
pale of discussion are but little understood. The education of
public opinion, which should lead the sovereign people in each
country to understand the definite limitations upon national
rights and the full scope and responsibility of national duties,
has only just begun. Information, understanding, leadership
of opinion in these matters, so vital to wise judgment and
right action in international affairs, are much needed. This
society may serve as a collegium, in the true sense of the word,
in which all who choose to seek a broader knowledge of the
law that governs the affairs of nations may give each to the
other the incitement of earnest and faithful study and may
give to the great body of our countrymen a clearer view of
their international rights and responsibilities.
I shall detain you from the interesting program of instruc-
tion and discussion which has been arranged for this meeting
only by trying to illustrate the kind of service that the society
may render, in a few remarks intended to clear away a some-
what widespread popular misapprehension regarding a
question arising under a treaty of the United States.
The treaty of November 22, 1894, between the United
States and Japan provided, in the first article:
The citizens or subjects of each of the two high contracting parties shall
have full liberty to enter, travel, or reside in any part of the territory of the
other contracting party, and shall enjoy full and perfect protection for
their persons and property. .
In whatever relates to rights of residence and travel; to the possession
of goods and effects of any kind; to the succession to personal estate, by
will or otherwise, and the disposal of property of any sort and in any man-
THE JAPANESE TREATY
9
ner whatsoever which they may lawfully acquire, the citizens or subjects
of each contracting party shall enjoy in the territories of the other the same
privileges, liberties, and rights, and shall be subject to no higher imposts
or charges in these respects than native citizens or subjects or citizens or
subjects of the most favored nation.
The constitution of the state of California provides, in
article 9:
SECTION 1. A general diffusion of knowledge and intelligence being
essential to the preservation of the rights and liberties of the people, the
legislature shall encourage by all suitable means the promotion of intel-
lectual, scientific, moral and agricultural improvement.
Sec. 5. The legislature shall provide for a system of common schools,
by which a free school shall be kept up and supported in each district at
least six months in every year, after the first year in which a school has
been established.
Sec. 6. The public school system shall include primary and grammar
schools, and such high schools, evening schools, normal schools and tech-
nical schools as may be established by the legislature, or by municipal or
district authority. The entire revenue derived from the state school fund
and from the general state school tax shall be applied exclusively to the
support of the primary and grammar schools.
The statutes of California establish the public school sys-
tem required by the constitution. They provide that the
State Comptroller must each year
estimate the amount necessary to raise the sum of seven dollars for each
census child between the ages of five and seventeen years in the said state
of California, which shall be the amount necessary to be raised by ad
valorem tax for the school purposes during the year.
The statutes further provide that the Board of Education
of San Francisco shall have authority
to establish and enforce all necessary rules and regulations for the govern-
ment and efficiency of the schools in that city) and for the carrying into
effect the school system; to remedy truancy; and to compel attendance
at school of children between the ages of six and fourteen years, who may
be found idle in public places during school hours.
The statutes further provide, in section 1662 of the school
law:
10
INTERNATIONAL SUBJECTS
Every school, unless otherwise provided by law, must be open for the
admission of all children between six and twenty-one years of age resid-
ing in the district, and the board of school trustees, or city board of edu-
cation, have power to admit adults and children not residing in the district,
whenever good reasons exist therefor. Trustees shall have the power to
exclude children of filthy or vicious habits, or children suffering from con-
tagious or infectious diseases, and also to establish separate schools for
Indian children and for children of Mongolian or Chinese descent. When
such separate schools are established, Indian, Chinese, or Mongolian
children must not be admitted into any other school.
On October 11, 1906, the Board of Education of San Fran-
cisco adopted a resolution in these words:
Resolved: That in accordance with article X, section 1662, of the school
law of California, principals are hereby directed to send all Chinese, Japa-
nese, or Korean children to the Oriental Public School, situated on the
south side of Clay Street, between Powell and Mason Streets, on and after
Monday, October 15, 1906.
The school system thus provided school privileges for all
resident children, whether citizen or alien; all resident chil-
dren were included in the basis for estimating the amount to
be raised by taxation for school purposes; the fund for the
support of the school was raised by general taxation upon
all
property of resident aliens as well as of citizens; and all resi-
dent children, whether of aliens or of citizens, were liable to
be compelled to attend the schools. So that, under the reso-
lution of the Board of Education, the children of resident
aliens of all other nationalities were freely admitted to the
schools of the city in the neighborhood of their homes, while
the children of Indians, Chinese and Japanese were excluded
from those schools, and were not only deprived of education
unless they consented to go to the special oriental school on
Clay Street, but were liable to be forcibly compelled to go to
that particular school.
After the passage of this resolution, admission to the ordi-
nary primary schools of San Francisco was denied to Japa-
nese children, and thereupon the Government of Japan made
THE JAPANESE TREATY
11
representations to the Government of the United States that
inasmuch as the children of residents who were citizens of all
other foreign countries were freely admitted to the schools,
the citizens of Japan residing in the United States were, by
that exclusion, denied the same privileges, liberties, and rights
relating to the right of residence which were accorded to the
citizens or subjects of the most favored nation. The ques-
tions thus raised were promptly presented by the Government
of the United States to the federal court in California, and
also to the state court of California, in appropriate legal pro-
ceedings. The matter has been happily disposed of without
proceeding to judgment in either case; but in the meantime
there was much excited discussion of the subject in the news-
papers and in public meetings and in private conversation.
It is a pleasure to be able to say that never for a moment
was there as between the Government of the United States
and the Government of Japan, the slightest departure from
perfect good temper, mutual confidence, and kindly con-
sideration; and that no sooner had the views and purposes of
the Governments of the United States, the state of California,
and the city of San Francisco been explained by each to the
other than entire harmony and good understanding resulted,
with a common desire to exercise the powers vested in each,
for the common good of the whole country, of the state, and
of the city.
The excitement has now subsided, so that it may be useful
to consider what the question really was, not because it is
necessary for the purposes of that particular case, but be-
cause of its bearing upon cases which may arise in the
future under the application of the treaty-making power
of the United States to other matters and in other parts of
the national domain.
It is obvious that three distinct questions were raised by
the claim originating with Japan and presented by our na-
12
INTERNATIONAL SUBJECTS
tional government to the courts in San Francisco. The first
and second were merely questions of construction of the
treaty. Was the right to attend the primary schools a right,
liberty, or privilege of residence ? and, if so, was the limita-
tion of Japanese children to the oriental school and their
exclusion from the ordinary schools a deprivation of that
right, liberty, or privilege ? These questions of construction,
and especially the second, are by no means free from doubt;
but as they concern only the meaning of a particular clause
in a particular treaty they are not of permanent importance,
and, the particular occasion for their consideration having
passed, they need not now be discussed.
The other question was whether, if the treaty had the
meaning which the Government of Japan ascribed to it, the
Government of the United States had the constitutional
power to make such a treaty agreement with a foreign nation
which should be superior to and controlling upon the laws of
the state of California. A correct understanding of that
question is of the utmost importance not merely as regards
the state of California, but as regards all states and all
citizens of the Union.
There was a very general misapprehension of what this
treaty really undertook to do. It was assumed that in mak-
ing and asserting the validity of the treaty of 1894 the
United States was asserting the right to compel the state of
California to admit Japanese children to its schools. No
such question was involved. That treaty did not, by any
possible construction, assert the authority of the United
States to compel any state to maintain public schools, or to
extend the privileges of its public schools to Japanese chil-
dren or to the children of any alien residents. The treaty did
assert the right of the United States, by treaty, to assure to
the citizens of a foreign nation residing in American territory
equality of treatment with the citizens of other foreign na-
THE JAPANESE TREATY
13
tions, so that if any state chooses to extend privileges to alien
residents as well as to citizen residents, the state will be for-
bidden by the obligation of the treaty to discriminate against
the resident citizens of the particular country with which the
treaty is made and will be forbidden to deny to them the
privileges which it grants to the citizens of other foreign
countries. The effect of such a treaty, in respect of educa-
tion, is not positive and compulsory; it is negative and pro-
hibitory. It is not a requirement that the state shall furnish
education; it is a prohibition against discrimination when
the state does choose to furnish education. It leaves every
state free to have public schools or not, as it chooses, but it
says to every state: “If you provide a system of education
which includes alien children, you must not exclude these
particular alien children.”
It has been widely asserted or assumed that this treaty
provision and its enforcement involved some question of
state's rights. There was and is no question of state's rights
involved, unless it be the question which was settled by the
adoption of the Constitution.
This will be apparent upon considering the propositions
which I will now state:
1. The people of the United States, by the Constitution of
1787, vested the whole treaty-making power in the national
government. They provided:
The president shall have power, by and with the advice and consent of
the senate, to make treaties, provided two-thirds of the senators present
concur. (Art. II, sec. 2.)
No state shall enter into any treaty, alliance or confederation; ... No
state shall, without the consent of congress, enter into any agreement
or compact with another state, or with a foreign power. (Art. I, sec. 10.)
This constitution, and the laws of the United States which shall be made
in pursuance thereof, and all treaties made, or which shall be made under
the authority of the United States, shall be the supreme law of the land;
and the judges in every state shall be bound thereby, anything in the con-
stitution or laws of any state to the contrary notwithstanding. (Art. VI.)
14
INTERNATIONAL SUBJECTS
Legislative power is distributed: upon some subjects the
national legislature has authority; upon other subjects the
state legislature has authority. Judicial power is distributed:
in some cases the federal courts have jurisdiction, in other
cases the state courts have jurisdiction. Executive power is
distributed: in some fields the national executive is to act;
in other fields the state executive is to act. The treaty-mak-
ing power is not distributed; it is all vested in the national
government; no part of it is vested in or reserved to the
states. In international affairs there are no states; there is
but one nation, acting in direct relation to and representation
of every citizen in every state. Every treaty made under the
authority of the United States is made by the national gov-
ernment, as the direct and sole representative of every citizen
of the United States residing in California equally with every
citizen of the United States residing elsewhere. It is, of
course, conceivable that, under pretense of exercising the
treaty-making power, the President and Senate might at-
tempt to make provisions regarding matters which are not
proper subjects of international agreement, and which would
be only a colorable - not a real — exercise of the treaty-
making power; but so far as the real exercise of the
power
goes, there can be no question of state rights, because the
Constitution itself, in the most explicit terms, has precluded
the existence of any such question.
2. Although there are no express limitations upon the
treaty-making power granted to the national government,
there are certain implied limitations arising from the nature
of our government and from other provisions of the Constitu-
tion; but those implied limitations do not in the slightest
degree touch the making of treaty provisions relating to the
treatment of aliens within our territory.
In the case of Geofroy v. Riggs, which, in 1889, sustained
the rights of French citizens under the treaty of 1800 to take
THE JAPANESE TREATY
15.
and hold real and personal property in contravention of the
common law and the statutes of the state of Maryland, the
Supreme Court of the United States said:
That the treaty power of the United States extends to all proper subjects
of negotiation between our government and the governments of other
nations is clear. ... The treaty power, as expressed in the constitution,
is in terms unlimited except by those restraints which are found in that
instrument against the action of the government or of its departments, and
those arising from the nature of the government itself and of that of the
states. It would not be contended that it extends so far as to authorize
what the constitution forbids, or a change in the character of the govern-
ment, or in that of one of the states, or a cession of any portion of the terri-
tory of the latter without its consent. But with these exceptions it is not
perceived that there is any limit to the questions which can be adjusted
touching any matter which is properly the subject of negotiation with a
foreign country.
3. Reciprocal agreements between nations regarding the
treatment which the citizens of each nation shall receive in
the territory of the other nation are among the most familiar,
ordinary and unquestioned exercises of the treaty-making
power. To secure the citizens of one's country against dis-
criminatory laws and discriminatory administration in the
foreign countries where they may travel or trade or reside is,
and always has been, one of the chief objects of treaty mak-
ing, and such provisions always have been reciprocal.
During the entire history of the United States provisions
of this description have been included in our treaties of
friendship, commerce and navigation with practically all the
other nations of the world. Such provisions had been from
time immemorial the subject of treaty agreements among
the nations of Europe before American independence; and
the power to make such provisions was exercised without
question by the Continental Congress in the treaties which
it made prior to the adoption of our Constitution. The treaty
of 1778 with France, made between the Most Christian King
and the thirteen United States of North America by name,
16
INTERNATIONAL SUBJECTS
contained such provisions. So did the treaty of 1782 between
Their High Mightinesses the States-General of the United
Netherlands and the thirteen United States of America by
name.
The treaty of 1785 with Prussia, ratified by the Conti-
nental Congress on May 17, 1786, contained an exercise of the
same kind of power. Mr. Bancroft Davis summarizes the
pro-
visions of this character in the Prussian treaty in these words:
The favored nation clause put Prussia on the best footing in the ports of
Charleston, Boston, Philadelphia and New York, no matter what the
legislatures of South Carolina, Massachusetts, Pennsylvania, or New
York might say. Aliens were permitted to hold personal property and dis-
pose of it by testament, donation, or otherwise, and the exaction of state
dues in excess of those exacted from citizens of the state in like cases were
forbidden. The right was secured to aliens to frequent the coasts of each
and all the states, and to reside and trade there. Resident aliens were
assured against state legislation to prevent the exercise of liberty of con-
science and the performance of religious worship; and when dying, they
were guaranteed the right of decent burial and undisturbed rest for their
bodies.
It is not open to doubt that when the delegates of these
thirteen states conferred the power to make treaties upon the
new national government in the broadest possible terms and
without any words of limitation, the subjects about which
they themselves had been making the treaties then in force
were included in the power.
The treaty of July 28, 1868, between the United States and
China -- the celebrated Burlingame Treaty - contained,
in the sixth article, a provision in the very words of the
Japanese treaty. That article provided:
Citizens of the United States visiting or residing in China shall enjoy
the same privileges, immunities or exemptions in respect to travel or resi-
dence as may there be enjoyed by the citizens or subjects of the most
favored nation. And, reciprocally, Chinese subjects visiting or residing in
the United States, shall enjoy the same privileges, immunities, and exemp-
tions in respect to travel or residence, as may there be enjoyed by the
citizens or subjects of the most favored nation.
,!
THE JAPANESE TREATY
17.
In the case of Tiburicio Parrot (6 Sawyer, 368) the Circuit
Court of the United States said, Mr. Justice Sawyer reading
the opinion:
As to the point whether the provision in question is within the treaty-
making power, I have as little doubt as upon the point already discussed.
Among all civilized nations, in modern times at least, the treaty-making
power
has been accustomed to determine the terms and conditions upon
which the subjects of the parties to the treaty shall reside in the respec-
tive countries, and the treaty-making power is conferred by the Con-
stitution in unlimited terms. Besides, the authorities cited on the first
point fully cover and determine this question. If the treaty-making power
is authorized to determine what foreigners shall be permitted to come
into and reside within the country, and who shall be excluded, it must
have the power generally to determine and prescribe upon what terms and
conditions such as are admitted shall be permitted to remain.
And regarding the same treaty the Supreme Court of the
United States remarked, in the case of Baldwin v. Franks
(120 U. S., 679):
That the United States have power under the Constitution to provide
for the punishment of those who are guilty of depriving Chinese subjects
of any of the rights, privileges, immunities, or exemptions guaranteed to
them by this treaty we do not doubt.
4. It has been settled for more than a century that the
fact that a treaty provision would interfere with or annul
the laws of a state as to the aliens concerning whom the provi-
sion is made, is no impeachment of the treaty's authority.
The very words of the Constitution, that the judges in
every state shall be bound by a treaty“ anything in the con-
stitution or laws of any state to the contrary notwithstand-
ing,” necessarily imply an expectation that some treaties will
be made in contravention of laws of the states. Far from the
treaty-making power being limited by state laws, its scope
is
entirely independent of those laws; and whenever it deals
with the same subject, if inconsistent with the law, it annuls
the law. This is true as to any laws of the states, whether the
legislative authority under which they are passed is con-
18
INTERNATIONAL SUBJECTS
current with that of Congress, or exclusive of that of Con-
gress.
In the case of Ware v. Hylton the Supreme Court of the
United States, in the year 1796, considered the effect under
the Constitution of the treaty of peace with England of 1783,
which provided that
creditors on either side should meet with no lawful impediment to the
recovery of the full value in stirling money, of all bona fide debts, thereto-
fore contracted,
as against a law of the state of Virginia, which confiscated to
the state of Virginia the debts due from its citizens to British
subjects.
The court said:
There can be no limitation on the power of the people of the United
States. By their authority the state constitutions were made, and by
their authority the Constitution of the United States was established; and
they had the power to change or abolish the state constitutions, or to
make them yield to the general government and to treaties made by their
authority. A treaty cannot be the supreme law of the land that is, of
all the United States — if any act of a state legislature can stand in its way.
If the constitution of a state (which is the fundamental law of the state,
and paramount to its legislature) must give way to a treaty and fall before
it, can it be questioned whether the less power, an act of the state legisla-
ture, must not be prostrate ? It is the declared will of the people of the
United States that every treaty made by the authority of the United
States shall be superior to the constitution and laws of any individual
state; and their will alone is to decide.
Four things are apparent on a view of this sixth article of the national
Constitution: 1st. That it is retrospective, and is to be considered in the
same light as if the Constitution had been established before the making of
the treaty of 1783. 2d. That the constitution or laws of any of the states,
so far as either of them shall be found contrary to that treaty, are by force
of the said article prostrated before the treaty. 3d. That, consequently,
the treaty of 1783 has superior power to the legislature of any state, be-
cause no legislature of any state has any kind of power over the Constitu-
tion, which was its creator. 4th. That it is the declared duty of the state
judges to determine any constitution or laws of any state contrary to that
treaty (or any other), made under the authority of the United States, null
and void. National or federal judges are bound by duty and oath to the
same conduct.
THE JAPANESE TREATY
19
In the case of Fairfax v. Hunter, in 1812, Mr. Justice Story
delivering the opinion, the supreme court of the United
States sustained the title of a British subject, under the pro-
visions of the treaty of 1794, in direct contravention of the
laws of the state of Virginia. In the case of Chirac v. Chirac,
in 1817, Chief Justice Marshall delivering the opinion, the
Supreme Court of the United States sustained the title of a
French subject to real estate in Maryland, in direct contra-
vention of the laws of that state. A long line of cases have
followed in the Supreme Court applying the provisions of
various treaties and maintaining without exception the
unvarying rule that the state statute falls before the treaty.
It equally appears from these cases that the treaty provi-
sions which were sustained by the Supreme Court and the
state laws which were declared void, so far as they conflicted
with a treaty, related to matters regarding which Congress
had no power to legislate, but upon which, in the distribution
of legislative powers under the Constitution, the states, and
the states alone, had power to legislate.
5. Since the rights, privileges, and immunities, both of per-
son and property, to be accorded to foreigners in our country
and to our citizens in foreign countries are a proper subject of
treaty provision and within the limits of the treaty-making
power, and since such rights, privileges, and immunities may
be given by treaty in contravention of the laws of any state,
it follows of necessity that the treaty-making power alone has
authority to determine what those rights, privileges, and im-
munities shall be. No state can set up its laws as against the
grant of any particular right, privilege, or immunity any
more than against the grant of any other right, privilege, or
immunity. No state can say a treaty may grant to alien
residents equality of treatment as to property but not as to
education, or as to the exercise of religion and as to burial but
not as to education, or as to education but not as to property
3
20
INTERNATIONAL SUBJECTS
or religion. That would be substituting the mere will of the
state for the judgments of the President and Senate in exer-
cising a power committed to them and prohibited to the
states by the Constitution.
There was, therefore, no real question of power arising
under this Japanese treaty and no question of state rights.
There were, however, questions of policy, questions of
national interests and of state interests, arising under the
administration of the treaty and regarding the application of
its provisions to the conditions existing on the Pacific coast.
In the distribution of powers under our composite system
of government the people of San Francisco had three sets of
interests committed to three different sets of officers — their
special interest as citizens of the principal city and commer-
cial port of the Pacific coast represented by the city govern-
ment of San Francisco; their interest in common with all the
people of the state of California represented by the governor
and legislature at Sacramento; and their interests in com-
mon with all the people of the United States represented by
the national government at Washington. Each one of these
three different governmental agencies had authority to do
certain things relating to the treatment of Japanese residents
in San Francisco. These three interests could not be really
in conflict; for the best interest of the whole country is
always the true interest of every state and city, and the pro-
tection of the interests of every locality in the country is
always the true interest of the nation. There was, however,
a supposed or apparent clashing of interests, and, to do
away with this, conference, communication, comparison of
views, explanation of policy and purpose were necessary.
Many thoughtless and some mischievous persons have
spoken and written regarding these conferences and com-
munications as if they were the parleying and compromise of
enemies. On the contrary, they were an example of the way
THE JAPANESE TREATY
21
1
in which the public business ought always to be conducted;
so that the different public officers respectively charged with
the performance of duties affecting the same subject-matter
may work together in furtherance of the same public policy
and with a common purpose for the good of the whole coun-
try and every part of the country. Such a concert of action
with such a purpose was established by the conferences and
communications between the national authorities and the
authorities of California and San Francisco which followed
the passage of the Board of Education resolution.
There was one great and serious question underlying the
whole subject which made all questions of construction and of
scope and of effect of the treaty itself — all questions as to
whether the claims of Japan were well founded or not, all
questions as to whether the resolution of the School Board
was valid or not seem temporary and comparatively unim-
portant. It was not a question of war with Japan. All the
foolish talk about war was purely sensational and imagina-
tive. There was never even friction between the two govern-
ments. The question was, What state of feeling would be
created between the great body of the people of the United
States and the great body of the people of Japan as a result of
the treatment given to the Japanese in this country ?
What was to be the effect upon that proud, sensitive,
highly civilized people across the Pacific, of the discourtesy,
insult, imputations of inferiority and abuse aimed at them in
the columns of American newspapers and from the platforms
of American public meetings ? What would be the effect
upon our own people of the responses that natural resent-
ment for such treatment would elicit from the Japanese ?
The first article of the first treaty Japan ever made with a
western power provided:
There shall be a perfect, permanent, and universal peace and a sincere
and cordial amity between the United States of America on the one part,
22
INTERNATIONAL SUBJECTS
and the empire of Japan on the other part, and between their people
respectively, without exception of persons or places.
Under that treaty, which bore the signature of Matthew
Calbraith Perry, we introduced Japan to the world of western
civilization. We had always been proud of her wonderful
development - proud of the genius of the race that in a
single generation adapted an ancient feudal system of the far
East to the most advanced standards of modern Europe and
America. The friendship between the two nations had been
peculiar and close. Was the declaration of that treaty to be
set aside ? At Kurihama, in Japan, stands a monument to
Commodore Perry, raised by the Japanese in grateful appre-
ciation, upon the site where he landed and opened negotia-
tions for the treaty. Was that monument henceforth to
represent dislike and resentment? Were the two peoples to
face each other across the Pacific in future years with angry
and resentful feelings ? All this was inevitable if the process
which seemed to have begun was to continue, and the govern-
ment of the United States looked with the greatest solicitude
upon the possibility that the process might continue.
It is hard for democracy to learn the responsibilities of its
power; but the people now, not governments, make friend-
ship or dislike, sympathy or discord, peace or war, between
nations. In this modern day, through the columns of the
myriad press and messages flashing over countless wires,
multitude calls to multitude across boundaries and oceans in
courtesy or insult, in amity or in defiance. Foreign offices
and ambassadors and ministers no longer keep or break the
peace, but the conduct of each people toward every other.
The people who permit themselves to treat the people of
other countries with discourtesy and insult are surely sowing
the wind to reap the whirlwind, for a world of sullen and
revengeful hatred can never be a world of peace. Against
such a feeling treaties are waste paper and diplomacy the
THE JAPANESE TREATY
23
empty routine of idle form. The great question which over-
shadowed all discussion of the treaty of 1894 was the ques-
tion: Are the people of the United States about to break
friendship with the people of Japan ? That question, I
believe, has been happily answered in the negative.
THE SANCTION OF INTERNATIONAL LAW
PRESIDENTIAL ADDRESS AT THE SECOND ANNUAL MEETING
OF THE AMERICAN SOCIETY OF INTERNATIONAL LAW
WASHINGTON, APRIL 24, 1908
O
NE accustomed to the administration of municipal law
who turns his attention for the first time to the dis-
cussion of practical questions arising between nations and
dependent upon the rules of international law, must be
struck by a difference between the two systems which ma-
terially affects the intellectual processes involved in every
discussion, and which is apparently fundamental.
The proofs and arguments adduced by the municipal
lawyer are addressed to the object of setting in motion certain
legal machinery which will result in a judicial judgment to be
enforced by the entire power of the state over litigants sub-
ject to its jurisdiction and control. Before him lies a clear,
certain, definite conclusion of the controversy, and for the
finality and effectiveness of that conclusion the sheriff and
the policeman stand always as guarantors in the last resort.
When the international lawyer, on the other hand, passes
from the academic discussion in which he has no one to con-
vince but himself, and proceeds to seek the establishment of
rights or the redress of wrongs in a concrete case, he has ap-
parently no objective point to which he can address his
proofs or arguments, except the conscience and sense of jus-
tice of the opposing party to the controversy. In only rare,
exceptional and peculiar cases, do the conclusions of the
international lawyer, however clearly demonstrated, have
behind them the compulsory effect of possible war. In the
vast majority of practical questions arising under the rule of
25
26
INTERNATIONAL SUBJECTS
international law there does not appear on the surface to be
any reason why either party should abandon its own con-
tention or yield against its own interest to the arguments of
the other side. The action of each party in yielding or refus-
ing to yield to the arguments of the other appears to be
entirely dependent upon its own will and pleasure. This
apparent absence of sanction for the enforcement of the rules
of international law has led great authority to deny that those
rules are entitled to be called law at all; and this apparent
hopelessness of finality carries to the mind which limits its
consideration to the procedure in each particular case, a
certain sense of futility of argument.
Nevertheless, all the foreign offices of the civilized world
are continually discussing with each other questions of in-
ternational law, both public and private, cheerfully and
hopefully marshaling facts, furnishing evidence, presenting
arguments, and building up records, designed to show that
the rules of international law require such and such things to
be done or such and such things to be left undone. And in
countless cases nations are yielding to such arguments and
shaping their conduct against their own apparent interests in
the particular cases under discussion, in obedience to the
rules which are shown to be applicable.
Why is it that nations are thus continually yielding to
arguments with no apparent compulsion behind them, and
before the force of such arguments abandoning purposes,
modifying conduct, and giving redress for injuries ? A care-
ful consideration of this question seems to lead to the con-
clusion that the difference between municipal and interna-
tional law, in respect of the existence of forces compelling
obedience, is more apparent than real, and that there are
sanctions for the enforcement of international law no less real
and substantial than those which secure obedience to munic-
ipal law.
SANCTION OF INTERNATIONAL LAW
27
It is a mistake to assume that the sanction which secures
obedience to the laws of the state consists exclusively or
chiefly of the pains and penalties imposed by the law itself
for its violation. It is only in exceptional cases that men
refrain from crime through fear of fine or imprisonment. In
the vast majority of cases men refrain from criminal conduct
because they are unwilling to incur in the community in
which they live the public condemnation and obloquy which
would follow a repudiation of the standard of conduct pre-
scribed by that community for its members. As a rule, when
the law is broken the disgrace which follows conviction and
punishment is more terrible than the actual physical effect of
imprisonment or deprivation of property. Where it happens
that the law and public opinion point different ways, the
latter is invariably the stronger. I have seen a lad grown up
among New York toughs break down and weep because sent
to a reformatory instead of being sentenced to a state's
prison for a violation of law. The reformatory meant com-
parative ease, comfort, and opportunity for speedy return to
entire freedom; the state's prison would have meant hard
labor and long and severe confinement. Yet in his com-
munity of habitual criminals a term in state's prison was a
proof of manhood and a title to distinction, while consign-
ment to a reformatory was the treatment suited to immature
boyhood. He preferred the punishment of manhood with
what he deemed honor to the opportunity of youth with
what he deemed disgrace. Not only is the effectiveness of
the punishments denounced by law against crime derived
chiefly from the public opinion which accompanies them, but
those punishments themselves are but one form of the expres-
sion of public opinion. Laws are capable of enforcement only
so far as they are in agreement with the opinions of the com-
munity in which they are to be enforced. As opinion changes
old laws become obsolete and new standards force their way
28
INTERNATIONAL SUBJECTS
into the statute books. Laws passed, as they sometimes are,
in advance of public opinion ordinarily wait for their en-
forcement until the progress of opinion has reached recogni-
tion of their value. The force of law is in the public opinion
which prescribes it.
The impulse of conformity to the standard of the com-
munity and the dread of its condemnation are reënforced by
the practical considerations which determine success or
failure in life. Conformity to the standard of business
integrity which obtains in the community is necessary to
business success. It is this consideration far more frequently
than the thought of the sheriff with a writ of execution that
leads men to pay their debts and to keep their contracts.
Social esteem and standing, power and high place in the pro-
fessions, in public office, in all associated enterprise, depend
upon conformity to the standards of conduct in the com-
munity. Loss of these is the most terrible penalty society
can inflict. It is only for the occasional nonconformist that
the sheriff and policeman are kept in reserve; and it is only
because the nonconformists are occasional and comparatively
few in number that the sheriff and the policeman can have
any effect at all. For the great mass of mankind laws estab-
lished by civil society are enforced directly by the power of
public opinion, having, as the sanction for its judgments, the
denial of nearly everything for which men strive in life.
The rules of international law are enforced by the same
kind of sanction, less certain and peremptory, but continually
increasing in effectiveness of control. “A decent respect to
the opinions of mankind " did not begin or end among nations
with the American Declaration of Independence; but it is
interesting that the first public national act in the New
World should be an appeal to that universal international
public opinion, the power and effectiveness of which the New
World has done so much to promote.
SANCTION OF INTERNATIONAL LAW
29
In former times, each isolated nation, satisfied with its own
opinion of itself and indifferent to the opinion of others, sepa-
rated from all others by mutual ignorance and misjudgment,
regarded only the physical power of other nations. Gibbon
could say of the Byzantine Empire: “Alone in the universe,
the self-satisfied pride of the Greeks was not disturbed by
the comparison of foreign merit; and it is no wonder if they
fainted in the race, since they had neither competitors to
urge their speed nor judges to crown their victory.” Now,
however, there may be seen plainly the effects of a long-
continued process which is breaking down the isolation of
nations, permeating every country with better knowledge
and understanding of every other country, spreading
throughout the world a knowledge of each government's
conduct to serve as a basis for criticism and judgment, and
gradually creating a community of nations, in which stand-
ards of conduct are being established, and a world-wide
public opinion is holding nations to conformity or condemn-
ing them for disregard of the established standards. The
improved facilities for travel and transportation, the enor-
mous increase of production and commerce, the revival of
colonization and the growth of colonies on a gigantic scale,
the severance of the laborer from the soil, accomplished by
cheap steamship and railway transportation and the emigra-
tion agent, the flow and return of millions of emigrants
across national lines, the amazing development of telegraphy
and of the press, conveying and spreading instant informa-
tion of every interesting event that happens in regions how-
ever remote -- all have played their part in this change.
Pari passu with the breaking down of isolation, that makes
a common public opinion possible, the building up of stand-
ards of conduct is being accomplished by the formulation
and establishment of rules that are being gradually taken out
of the domain of discussion into that of general acceptance,
30
INTERNATIONAL SUBJECTS
a process in which the recent conferences at The Hague
have played a great and honorable part. There is no civi-
lized country now which is not sensitive to this general
opinion, none that is willing to subject itself to the discredit
of standing brutally on its power to deny to other countries
the benefit of recognized rules of right conduct. The
deference shown to this international public opinion is in
due proportion to a nation's greatness and advance in civili-
zation. The nearest approach to defiance will be found
among the most isolated and least civilized of countries,
whose ignorance of the world prevents the effect of the
world's opinion; and in every such country internal disorder,
oppression, poverty, and wretchedness mark the penalties
which warn mankind that the laws established by civilization
for the guidance of national conduct cannot be ignored with
impunity.
National regard for international opinion is not caused by
amour propre alone — not merely by desire for the approval
and good opinion of mankind. Underlying the desire for
approval and the aversion to general condemnation with
nations as with the individual, there is a deep sense of inter-
est, based partly upon the knowledge that mankind backs its
opinions by its conduct and that nonconformity to the stand-
ard of nations means condemnation and isolation, and partly
upon the knowledge that in the give and take of international
affairs it is better for every nation to secure the protection of
the law by complying with it than to forfeit the law's benefits
by ignoring it.
Beyond all this there is a consciousness that in the most
important affairs of nations, in their political status, the
success of their undertakings and their processes of develop-
ment, there is an indefinite and almost mysterious influence
exercised by the general opinion of the world regarding the
nation's character and conduct. The greatest and strongest
SANCTION OF INTERNATIONAL LAW
31
governments recognize this influence and act with reference
to it. They dread the moral isolation created by general
adverse opinion and the unfriendly feeling that accompanies
it, and they desire general approval and the kindly feeling
that goes with it.
This is quite independent of any calculation upon a physi-
cal enforcement of the opinion of others. It is difficult to
say just why such opinion is of importance, because it is
always difficult to analyze the action of moral forces; but it
remains true and is universally recognized that the nation
which has with it the moral force of the world's approval is
strong, and the nation which rests under the world's condem-
nation is weak, however great its material power.
These are the considerations which determine the course
of national conduct regarding the vast majority of questions
to which are to be applied the rules of international law. The
real sanction which enforces those rules is the injury which
inevitably follows nonconformity to public opinion; while,
for the occasional and violent or persistent law-breaker, there
always stands behind discussion the ultimate possibility of
war, as the sheriff and the policeman await the occasional
and comparatively rare violators of municipal law.
Of course, the force of public opinion can be brought to
bear only upon comparatively simple questions and clearly
ascertained and understood rights. Upon complicated or
doubtful questions, as to which judgment is difficult, each
party to the controversy can maintain its position of refusing
to yield to the other's arguments without incurring public
condemnation. Upon this class of questions the growth of
arbitration furnishes a new and additional opportunity for
opinion to act; because, however complicated the question in
dispute may be, the proposition that it should be submitted
to an impartial tribunal is exceedingly simple, and the prop-
osition that the award of such a tribunal shall be complied
32
INTERNATIONAL SUBJECTS
with is equally simple, and the nation which refuses to sub-
mit a question properly the subject of arbitration naturally
invites condemnation.
Manifestly, this power of international public opinion is
exercised not so much by governments as by the people of
each country whose opinions are interpreted in the press and
determine the country's attitude towards the nation whose
conduct is under consideration. International opinion is the
consensus of individual opinion in the nations. The most
certain way to promote obedience to the law of nations and
to substitute the power of opinion for the power of armies
and navies is, on the one hand, to foster that" decent respect
to the opinions of mankind ” which found place in the great
Declaration of 1776, and, on the other hand, to spread among
the people of every country a just appreciation of interna-
tional rights and duties and a knowledge of the principles and
rules of international law to which national conduct ought to
conform; so that the general opinion, whose approval or
condemnation supplies the sanction for the law, may be
sound and just and worthy of respect.
THE RELATIONS BETWEEN INTERNATIONAL
TRIBUNALS OF ARBITRATION AND THE
JURISDICTION OF NATIONAL COURTS
PRESIDENTIAL ADDRESS AT THE THIRD ANNUAL MEETING OF
THE AMERICAN SOCIETY OF INTERNATIONAL LAW
WASHINGTON, APRIL 23, 1909
Tho!
HE growing tendency towards international arbitration
brings into special consideration and importance the re-
lation between the jurisdiction of national courts of justice
and international tribunals of arbitration.
When one nation urges claims in behalf of its citizens upon
the government of another nation and proposes arbitration,
how far does that other nation's respect for its own independ-
ent sovereignty and for the integrity of its own judicial
system require it to insist that the claims be submitted for
final decision to its own national courts ?
The true basis for the consideration of this question is in
the nature of the obligation which constrains a nation to
submit questions to any tribunal whatever.
That there is no legal obligation to make any submission,
that is to say, that it is not required by any rule imposed by a
superior power, is a corollary from our conception of sover-
eignty. Sovereignty involves the right to determine one's
own actions — to pay or not to pay, to redress injury or not
to redress it, at the will of the sovereign, subject only to the
necessary conditions created by the existence of other equally
independent states. So far as questions arise out of contract,
Alexander Hamilton states the strongest view of national
freedom from restraint in a passage often quoted in recent
years:
99
34
INTERNATIONAL SUBJECTS
Contracts between a nation and private individuals are obligatory, accord-
ing to the conscience of the sovereign, and may not be the object of com-
pelling force. They confer no right of action contrary to the sovereign will.
So far as questions arise out of alleged wrongs by one gov-
ernment against a citizen of another, the sovereignty of one
nation is merely confronted by another sovereignty, which is
itself equally supreme within its own limits. Wherever the
true lines are to be drawn between two mutually exclusive
sovereignties, each is supreme and subject to no compulsion
on its own side of the line. Wherever there is infringement
by one on the other there exists the right of adverse action,
which involves no impeachment of independent sovereignty,
but follows necessarily from the contact of two independent
powers. Whatever modifications international lawyers urge
to the broad statement of doctrine to which Doctor Calvo
has given his name, so ably enforced by his successor, Dr.
Drago, there is no effective dispute regarding the foundation
of his main proposition, regarding the essential nature of
vereignty.
The conditions under which this sovereign power is exer-
cised among civilized nations do, however, impose upon it
important limitations, just as the conditions under which
individual liberty is enjoyed in a free civil community im-
pose limitations upon individual conduct in matters not at
all controlled by law. Municipal law does not, in general,
undertake to compel men to be virtuous, truthful, sober, fair,
polite, and considerate of others. Yet the existence of civil
liberty is conditioned upon the existence of a community
standard of conduct quite independent of legal compulsion,
and extending far beyond the limits touched by any statute.
The member of a community who chooses to use his indi-
vidual liberty to violate that standard conspicuously, meets
severe punishment in the loss of respect, confidence, and
esteem, and in the consequences of that loss. Another very
SOVE
ARBITRATION AND NATIONAL COURTS
35
effective limitation upon conduct is the knowledge that cer-
tain courses of conduct quite within one's legal rights may
lead some other man to use his individual freedom, to do one
injury. The compulsion which such considerations produce
upon individual action is no more an infringement upon
individual liberty than is the effect caused by the knowledge
that fire will burn and water will drown. The individual in
each case regulates his own conduct in accordance with his
own will.
The assertion of independent sovereignty of nations is but
another expression of the individual liberty of each nation in
the community of nations. In its practical application it is
of modern acceptance, superseding the old idea that each
nation, tribe or group of people under whatever chieftain,
leader, sovereign, or government, was entitled to hold such
territory and exercise such control over its own conduct, as it
could maintain by force of arms, and no more.
The theory of independent sovereignty, entitled to be re-
spected by all mankind without regard to its power to main-
tain itself by force, could find no place in the world except in
coincidence with a standard of international conduct to
which the nations generally, in the exercise of their individual
sovereignty, conform, each without compulsion of any other
power, but voluntarily.
The chief principle entering into this standard of conduct
is that every sovereign nation is willing at all times and
under all circumstances to do what is just. That is the uni-
versal postulate of all modern diplomatic discussion. No
nation would for a moment permit its own conformity to the
standard in this respect, to be questioned. The obligation
which this willingness implies is no impeachment of sover-
eignty. It is voluntarily assumed as an incident to the
exercise of sovereignty because it is essential to a continu-
ance of the conditions under which the independence of
36
INTERNATIONAL SUBJECTS
sovereignty is possible. This obligation is by universal con-
sent interpreted according to established and accepted rules
as to what constitutes justice under certain known and fre-
quently recurring conditions; and these accepted rules we call
international law. No demand can ever be made by one
nation upon another to give redress in any case but that the
demand is met by an avowed readiness to do justice in that
case, and upon that demand in accordance with the rules of
international law. No compulsion upon sovereignty is
needed to reach that result.
The only question that can arise upon such a demand is
the question, “What is just in this case ?” In that neces-
sary condition of agreement upon the underlying principle to
be followed, a common duty is presented to both nations
to ascertain and determine what is just.
It is not usually a simple or easy thing to determine what
is just as between a nation and either its own citizens or the
citizens of other nations. Upon one conclusion all civilized
nations are in accord — that the executive and adminis-
trative officers of government cannot be depended upon to
make such determinations. Civilized nations uniformly pro-
vide machinery for judicial decision of such questions so
that the views of executive and administrative officers in
rejecting claims may be reviewed and controlled. The grant
of jurisdiction to courts or the creation of courts to exercise
such jurisdiction is no disparagement of the officers whose
views of what is just are thus called in question. Sovereigns
and presidents and ministers and department officers are not
insulted by such provisions, or because the common sense of
justice recognizes that their relation to the questions which
arise between the government which they conduct, and
others, is such that they cannot well be impartial.
The whole system by which sovereign states permit them-
selves to be sued in courts vested with jurisdiction for that
ARBITRATION AND NATIONAL COURTS
37
purpose is in recognition of the fundamental rule of right
that none shall be a judge in his own case.
That same great rule cannot be ignored when the question
is whether the decision of a national court is to be taken as a
final and satisfactory determination of what is just in an in-
ternational case, to which the judge's own country is a party.
For after all judges are but men. They are part of the gov-
ernment that is called in question. They are subject to the
influence of their environment. They cannot always escape
all the influences of popular feeling and prejudice in their own
communities. The political fortunes of the very officials who
appointed them to the bench, or their own tenure of office
may perhaps be at stake upon their action. They cannot help
bringing to the bench strong tendencies and predilections in
favor of their own countrymen's ways of acting and think-
ing. They desire the approbation of their fellow-citizens,
and in cases of public interest it may be much harder to
decide against than for, their own country. It is difficult for
a foreigner to understand and avail himself of their modes of
reasoning, their rules of evidence and of procedure, and the
precedents they follow. If there is a difference of languages a
stranger is at a great disadvantage. He may often lose his
case through not knowing how to do his part towards main-
taining it.
There are many circumstances varying in different coun-
tries and in different cases which tend to strengthen or to
weaken these obstacles to a satisfactory attainment of justice.
The general state of feeling in the country of trial towards
the country of the complainant and its effect upon the atmo-
sphere of the court room, that every experienced lawyer
knows to be so important, is one of these circumstances. The
relative importance of the case in proportion to the resources
of the country - whether an adverse decision would make a
slight or a great difference to the government or the people, is
38
INTERNATIONAL SUBJECTS
another. Whether the action of the executive has been
generally discussed and has assumed political importance is
another.
Every country is entitled to follow its own judgment and
is not subject to criticism for following its own judgment, as
to the degree of independence it shall give to its judiciary,
yet it cannot well be denied that with human nature as
it is, there is less certainty of an impartial decision from
judges removable at will in a case calling in question the
acts of the appointing and removing power, than from
judges whose tenure of office is not dependent upon the
executive. The decision of such a dependent court is liable
to be affected by the same infirmities which the whole
world recognizes as making the determination of the execu-
tive itself an unsatisfactory method of concluding the search
for justice.
It should not be forgotten that it is not only desirable to
have justice done; but also to have men believe that justice
is done. That belief is important to respect for law among
the people within each nation and to the maintenance and
growth of respect and friendship between the peoples of
different nations.
Of course there are many cases falling naturally into the
ordinary routine of national judicial procedure
plainly not presenting the elements of prejudice which would
prevent reaching justice through that procedure. Of course
there are many great international questions which no one
would ever propose to lay before a national tribunal. Be-
tween these two extremes there is a wide range of cases in
which national courts may exercise jurisdiction, but to which
the considerations that I have suggested apply. When such
cases arise the international question is not one of compulsion
or derogation from sovereignty, but it is: How shall two
nations desiring to ascertain what is the truth of justice in
cases
ARBITRATION AND NATIONAL COURTS
39
this case reach a decision ? By what procedure and before
what tribunal can that end best be attained ?
If recourse to arbitration is a reflection upon national
courts, the people of the United States have been strangely
obtuse, for nowhere in the world, surely, is greater honor
paid to the courts of justice, yet we have embodied in the
fundamental law which binds our states together a recogni-
tion of the liability of courts to be affected by local sentiment,
prejudice, and pressure. We have provided in the third
article of the Constitution of the United States that in con-
troversies between states or between citizens of different
states the determination of what is just shall not be confined
to the courts of justice of either state, but may be brought in
the Federal tribunals, selected and empowered by the repre-
sentatives of both states and of all the states — true arbitral
tribunals in the method of their creation and the office they
perform.
Alexander Hamilton explains this provision in The Feder-
alist in these words:
The reasonableness of the agency of the National courts in cases in
which the state tribunals cannot be supposed to be impartial, speaks for
itself. No man ought certainly to be a judge in his own cause, or in any
cause in respect to which he has the slightest interest or bias. This prin-
ciple has no inconsiderable weight in designating the Federal courts as the
proper tribunals for the determination of controversies between different
states and their citizens. And it ought to have the same operation in
regard to some cases between the citizens of the same state. Claims to
lands under grants of different states founded upon adverse pretension of
boundary are of this description. The courts of neither of the granting
states could be expected to be unbiased. The laws may have even pre-
judged the question and tied the courts down to decisions in favor of the
grant of the state to which they belonged. And where this has not been
done it would be natural that judges as men should feel a strong predilec-
tion to the claims of their own government.
t
The whole world owes too much to the Constitution of the
United States to think little of its example. Especially the
40
INTERNATIONAL SUBJECTS
American nations, which have drawn from that great instru-
ment their forms of government and the spirit of their free
institutions, must regard with respect the lesson which it
teaches.
The proud independent sovereign commonwealths like
Virginia and Pennsylvania and New York and Massachu-
setts, which formed the American Union, revered their judges.
They were prepared to give, and did give to their courts a
degree of authority over them and over their executives
and legislatures without precedent in the history of free
government; but they also revered justice; they prized
peace and concord and friendship and brotherhood between
the states and their citizens. A century and a half of free
self-government had brought to them the lessons and the
self-restraint of experience. They knew the limitations of
good men and the essential conditions of doing justice. In
that great cause they allowed no small local jealousies to bar
the way. When the ever-recurring question arises between
submission of controversies to international arbitration on
the one hand and insistence upon the jurisdiction of national
tribunals on the other, the nations who look to the framers of
the American Constitution as an example of high construc-
tive statesmanship and wisdom, should not fail to find in
this judgment, matter to arrest their attention and influence
their action.
No court in the world has greater power and independence
and honor than the Supreme Court, established under the
Constitution of the United States, yet our Government, by
international agreement, has submitted to international
tribunals many cases which could have been, and many
cases which already had been, decided by that great court.
For example, the cases of the Peterhof, reported in Wallace's
Reports, Volume 5, the Dashing Wave (5 Wallace), the
Georgia (7 Wallace), the Isabella Thompson (3 Wallace),
3
ARBITRATION AND NATIONAL COURTS
41
the Pearl (5 Wallace), the Adela (6 Wallace), had all been
decided by the Supreme Court, and they were re-submitted
to an international tribunal, which decided them in the same
way the court had decided them.
The cases of the Hiawatha (2 Black), the Circassian (2
Wallace); the Springbock (5 Wallace), the Sir William Peel
(5 Wallace), the Volant (5 Wallace), the Science (5 Wallace),
had all been decided by the Supreme Court, and they were
re-submitted to an international tribunal, which decided
them adversely to the decisions of the court, and the United
States complied with the decisions of the arbitral tribunal.
It is true that the rule is undisputed that where there has
been a denial of justice in national courts their decisions are
not to be held conclusive, and arbitration or other further
action may be called for. Unfortunately it has been neces-
sary often in the past, to invoke this rule; but it is an unsatis-
factory rule and injurious in its effects. It involves an indict-
ment and trial of the judicial system under which the denial
of justice is alleged to have occurred. It involves asper-
sions upon government, imputations upon high officials, in-
citement to anger and resentment, and tends to destroy
rather than to preserve good feeling and friendship between
the nations concerned.
The better rule would be, to avoid the danger of denials of
justice, and to prevent the belief that justice has not been
done, which must always possess the parties defeated in a
tribunal suspected of partiality, by submitting in the first
instance to an impartial arbitral tribunal all such cases as are
liable to be affected by the considerations I have mentioned.
And the reason of such a rule would require that when such
cases have been decided already by national courts, and the
impartial justice of the decision is seriously questioned, upon
substantial grounds, they should be re-submitted to an arbi-
tral tribunal, not for proof that justice has been denied, but
42
INTERNATIONAL SUBJECTS
for rehearing upon the merits because self-respect and intelli-
gent self-interest forbid a nation to shelter itself behind
decisions of its own courts that rest under the imputation of
partiality, or to be content with any but the best means and
the most sincere effort to learn what is just in order that the
nation may do what is just.
THE BASIS OF PROTECTION TO CITIZENS
RESIDING ABROAD
PRESIDENTIAL ADDRESS AT THE FOURTH ANNUAL MEETING
OF THE AMERICAN SOCIETY OF INTERNATIONAL LAW
WASHINGTON, APRIL 28, 1910
SHALL ask you to listen for a few minutes to some re-
marks regarding the protection which a nation should
extend over its citizens in foreign countries. I do not select
this topic because I have anything new to say about it, or
because there is any real controversy among international
lawyers concerning the principles involved or concerning the
fundamental rules to be applied, but because there is a con-
siderable degree of public misunderstanding about the sub-
ject, and situations are continually arising in which a failure
of the public in one country or another to appreciate justly
the extent and nature of international obligation leads to
resentment and unfriendly feeling that ought to be avoided.
The subject has grown in importance very rapidly during
recent years. The world policy of commercial exclusiveness
prevailing in the early part of the last century has practically
disappeared. The political relations on the one hand and the
commercial and industrial relations on the other hand of dif-
ferent parts of the earth to each other are quite separate and
distinct. It is not uncommon to find that a nation has com-
mercial colonies which bear no political relation to her what-
ever, and political colonies which are industrially allied most
closely to other countries.
The increase in facilities for transportation and communi-
cation — steamships and railroads and telegraphs and
telephones - has set in motion vast armies of travelers who
43
44
INTERNATIONAL SUBJECTS
are making their way into the most remote corners of foreign
countries to a degree never before known.
The general diffusion of intelligence among the people of all
civilized, and to a considerable degree of semi-civilized,
countries, has carried to the great mass of the people the
working people of the world — a knowledge of the affairs and
the conditions of life in other lands; and this, with the cheap-
ness and ease of transportation, has led to enormous emigra-
tion and shifting of population. One of the salient features of
modern political development has been the severance of the
people from the soil of their native countries. The peasant,
who was formerly a fixture in his native valley, unable to
conceive of himself as a part of any life beyond the circle of
the surrounding hills, now moves freely to and fro, not only
from one community to another but from one country to
another. Labor is becoming fluid, and, like money, flows
towards the best market without paying much attention to
political lines. The doctrine of inalienable allegiance so in-
consistent with the natural course of development of the new
world, and so long and so stoutly contested by the United
States, has been almost universally abandoned. It is mani-
fest that the few nations which have not given their assent to
the right of their citizens to change their citizenship and
allegiance as they change their residence will not long main-
tain their position. This change has led to a new class of
citizens traveling or residing abroad; that is, the naturalized
citizen, who, returning to his country of origin or going to
still other countries, claims the protection not of his native
but of his adopted government. Among the great throngs of
emigrants to other countries may be distinguished two some-
what different classes - one composed of those who have
transferred their substantial interests to the new country and
are building up homes for themselves; the other class com-
posed of those who still continue their principal interests in
CITIZENS RESIDING ABROAD
45
the country from which they have come and under their new
conditions are engaged in accumulating means for the better
support of the families and friends they have left behind
them, or for their own future support after the return to
which they look forward.
The great accumulation of capital in the money centers of
the world, far in excess of the opportunities for home invest-
ment, has led to a great increase of international investment
extending over the entire surface of the earth, and these
investments have naturally been followed by citizens from
the investing countries prosecuting and caring for the enter-
prises in the other countries where their investments are
made. For example, it was estimated three or four years
ago that within the preceding ten years over seven hundred
millions of capital had gone from the United States alone
into Mexico for investment; and this capital had been fol-
lowed by more than forty thousand citizens of the United
States who had become resident in Mexico. This same
process has been going on all over the world.
All these forms of peaceful interpenetration among the
nations of the earth naturally contribute their instances of
citizens justly or unjustly dissatisfied with the treatment
they receive in foreign countries and calling upon their own
governments for protection.
In two directions the process has gone so far as to justify
and receive limitation. On the one hand, there has come to
be a recognition of the essential difference between emigra-
tion en masse, by means of which the people of one country
may virtually take possession of considerable portions of the
territory of another country to the practical exclusion of its
own citizens, and the ordinary travel and residence upon
individual initiative to which the usual conventions concern-
ing reciprocal rights of travel and residence relate. The
occasion for considering this difference naturally depends
46
INTERNATIONAL SUBJECTS
very much upon the capacity of the emigrants for assimila-
tion with the people of the country to which they go. The
wider the differences in race, customs, traditions, and stand-
ards of living, the less is the probability of assimilation and
the greater the certainty that emigration of large bodies of
people will assume the character of peaceful invasion and
occupation of territory. After many years of discussion
China has come to recognize the existence of such a distinc-
tion in respect of Chinese emigration to North America.
Japan has recognized it from the first, and there has never
been any question between the governments of Japan and the
United States upon that subject.
On the other hand, the United States has itself put a limit
upon the practice, which had already reached the point of
serious abuse, of permitting the natives of other countries to
become naturalized here for the purpose of returning to their
homes or seeking a residence in third countries with the
benefit of American protection. Several years ago it was
estimated that there were in Turkey seven or eight thousand
natives of Turkey who had in one way and another secured
naturalization in the United States and had gone home to
live with the advantage over their friends and neighbors of
being able to call upon the American embassy for assistance
whenever they were not satisfied with the treatment they
received from their own government. At the time of the
troubles in Morocco, which were disposed of at the Algeciras
Conference, an examination of the list of American citizens
in Morocco showed that one half of the list consisted of
natives of Morocco who had been naturalized in the United
States and had left this country and gone back to Morocco
within three months after obtaining their naturalization
papers. We have now adopted a rule, which has been em-
bodied in a number of treaties and in the Act of Congress
of March 2, 1907, for the purpose of checking this abuse.
CITIZENS RESIDING ABROAD
47
The new rule is, that when a naturalized citizen leaves this
country instead of residing in it, two years' residence in
the country of his origin or five years' residence in any other
country creates a presumption of renunciation of the citizen-
ship which he had acquired here, and unless that presumption
is rebutted by showing some special and temporary reason
for the change of residence, the obligation of protection by
the United States is deemed to be ended.
I have dwelt upon the magnitude and diversity of the
causes which are resulting in the presence in each civilized
country of great numbers of citizens of other countries, be-
cause conditions so universal plainly must be dealt with
pursuant to fixed, definite, certain, and universally recog-
nized rules of international action.
The simplest form of protection is that exercised by strong
countries whose citizens are found in parts of the earth under
the jurisdiction of governments whose control is inadequate
for the preservation of order. Under such circumstances in
times of special disturbance it is an international custom for
the countries having the power to intervene directly for the
protection of their own citizens, as in the case of the Boxer
rebellion in China, when substantially all the Western
powers were concerned in the march to Peking and the for-
cible capture of that city for the protection of the legations.
On a smaller scale, armed forces have often been landed from
men-of-war for the protection of the life and property of
their national citizens during revolutionary disturbances, as,
for example, in Central America and the West Indies. Such
a course is undoubtedly often necessary, but it is always an
impeachment of the effective sovereignty of the government
in whose territory the armed demonstration occurs, and it
can be justified only by unquestionable facts which leave no
practical doubt of the incapacity of the government of the
country to perform its international duty of protection. It
48
INTERNATIONAL SUBJECTS
leads to many abuses, especially in the conduct of those
nationals who, feeling that they are backed up by a navy,
act as if they were superior to the laws of the country in
which they are residing and permit their sense of immunity
to betray them into arrogant and offensive disrespect.
Similar in principle to the method of direct protection
which I have mentioned is the practice of exercising extra-
territorial jurisdiction, under conventional arrangements, in
countries whose methods of administering justice are very
greatly at variance with the methods to which the people of
the great body of civilized states are accustomed, such, for
example, as China and Turkey.
Between countries which maintain effective government
for the maintenance of order within their territories, the
protection of one country for its nationals in foreign terri-
tory can be exercised only by calling upon the government of
the other country for the performance of its international
duty, and the measure of one country's international obliga-
tion is the measure of the other country's right. The rule of
obligation is perfectly distinct and settled. Each country is
bound to give to the nationals of another country in its terri-
tory the benefit of the same laws, the same administration,
the same protection and the same redress for injury which it
gives to its own citizens, and neither more nor less: provided
the protection which the country gives to its own citizens
conforms to the established standard of civilization.
There is a standard of justice, very simple, very funda-
mental, and of such general acceptance by all civilized coun-
tries as to form a part of the international law of the world.
The condition upon which any country is entitled to measure
the justice due from it to an alien by the justice which it
accords to its own citizens is that its system of law and ad-
ministration shall conform to this general standard. If any
country's system of law and administration does not con-
CITIZENS RESIDING ABROAD
49
form to that standard, although the people of the country
may be content or compelled to live under it, no other coun-
try can be compelled to accept it as furnishing a satisfac-
tory measure of treatment to its citizens. In the famous
Don Pacifico case, Lord Palmerston said, in the House of
Commons:
If our subjects abroad have complaints against individuals, or against
the government of a foreign country, if the courts of law of that country
can afford them redress, then, no doubt, to those courts of justice the
British subject ought in the first instance to apply; and it is only on a
denial of justice, or upon decisions manifestly unjust, that the British
Government should be called upon to interfere. But there may be cases
in which no confidence can be placed in the tribunals, those tribunals being,
from their composition and nature, not of a character to inspire any hope
of obtaining justice from them. It has been said: “We do not apply this
rule to countries whose governments are arbitrary or despotic, because
there the tribunals are under the control of the government, and justice
cannot be had; and, moreover, it is not meant to be applied to nominally
constitutional governments, where the tribunals are corrupt.'
I say, then, that our doctrine is, that, in the first instance, redress should
be sought from the law courts of the country; but that in cases where re-
dress cannot be so had and those cases are many
to confine a British
subject to that remedy only, would be to deprive him of the protection
which he is entitled to receive. .
We shall be told, perhaps, as we have already been told, that if the
people of the country are liable to have heavy stones placed upon their
breasts, and police officers to dance upon them; if they are liable to have
their heads tied to their knees, and to be left for hours in that state; or to
be swung like a pendulum, and to be bastinadoed as they swing, foreigners
have no right to be better treated than the natives, and have no business
to complain if the same things are practised upon them. We may be told
this, but that is not my opinion, nor do I believe it is the opinion of any
reasonable man.
Nations to which such observations apply must be content
to stand in an intermediate position between those incapable
of maintaining order, and those which conform fully to the
international standard. With this understanding there are
no exceptions to the rule and no variations from it. There
may be circumstances at particular times and places such
50
INTERNATIONAL SUBJECTS
that the application of the rule calls for action regarding
foreign citizens quite unlike the action ordinarily taken for
the benefit of native citizens, but it is always action which
would be equally required in case a native citizen were placed
under the same circumstances of exigency. It is plain that
no other rule is practicable. Upon any other basis every
country would be obliged to have two systems of law and
administration and police regulations, and the existence of
great numbers of foreigners in a country would be an intoler-
able burden. The standard to which the rule applies is a
standard of right, and, not necessarily of actual performance.
The foreigner is entitled to have the protection and redress
which the citizen is entitled to have, and the fact that the
citizen may not have insisted upon his rights, and may be
content with lax administration which fails to secure them to
him, furnishes no reason why the foreigner should not insist
upon them and no excuse for denying them to him. It is a
practical standard and has regard always to the possibilities
of government under existing conditions. The rights of the
foreigner vary as the rights of the citizen vary between ordi-
nary and peaceful times and times of disturbance and tumult;
between settled and ordinary communities and frontier
regions and mining camps.
The diplomatic history of this country presents a long and
painful series of outrages on foreigners by mob violence.
These have uniformly been the subject of diplomatic claims
and long-continued discussion, and ultimately of the pay-
ment of indemnity. An examination of these discussions will
show that in every case the indemnity was in fact paid be-
cause the United States had not done in the particular case
what it would have done for its own citizens if our laws had
been administered as our citizens were entitled to have them
administered. Of course, no government can guarantee all
the inhabitants of its territory against injury inflicted by
CITIZENS RESIDING ABROAD
51
individual crime and no government can guarantee the cer-
tain punishment of crime; but every citizen is entitled to
have police protection accorded to him commensurate with
the exigency under which he may be placed. If he is able to
give notice to the government of intended violence against
him he is entitled to have due measures taken for its preven-
tion, and he is entitled always to have such vigorous prose-
cution and punishment of those who are guilty of criminal
violation of his rights that it will be apparent to all the world
that he cannot be misused with impunity and that he will
have the benefit of the deterrent effect of punishment.
It is a distressing fact that in one important respect the
Government of the United States fails to comply with its
international obligation in giving the same degree of protec-
tion and opportunity for redress of wrong to foreigners that it
gives to its own citizens. The difficulties which beset aliens
in a strange land are ordinarily local difficulties. The govern-
ment and the people of the foreign country are usually quite
ready, in a broad and abstract way, to accord to foreigners
the fullest toleration, equality before the law, and protection.
But the people of the particular community with whom the
alien comes in contact too often fail of understanding and
sympathy. They misunderstand and resent the foreign
customs with which they are unfamiliar. They are aroused
to anger by the competition to which the foreigner subjects
them. Immediate contact is too apt at first to breed dislike
and intolerance towards what Bret Harte describes as the
“defective moral quality of being a foreigner.” Our Con-
stitution recognizes this natural and often inevitable preju-
dice by giving to our national courts jurisdiction over all
civil suits between aliens and citizens of the United States.
We fail to recognize the same conditions, however, in respect
of the security of the persons and property of aliens. The
Revised Statutes of the United States aim to protect citizens
52
INTERNATIONAL SUBJECTS
of the United States against local prejudice and injury, by
providing in Section 5508:
If two or more persons conspire to injure, oppress, threaten, or intimi-
date any citizen in the free exercise or enjoyment of any right or privilege
secured to him by the Constitution or laws of the United States, or be-
cause of his having so exercised the same; or if two or more persons go in
disguise on the highway, or on the premises of another, with intent to pre-
vent or hinder his free exercise or enjoyment of any right or privilege so
secured, they shall be fined not more than five thousand dollars and impris-
oned not more than ten years; and shall, moreover, be thereafter ineligible
to any office, or place of honor, profit, or trust created by the Constitution
or laws of the United States.
This provision, however, does not apply to aliens, and no
similar provision applies to them. Accordingly, defenseless
Chinamen were mobbed at Denver in 1880, and at Rock
Springs, Wyoming, in 1885; Italians were lynched in New
Orleans in 1891, and again at Rouse, Colorado, in 1895; and
Mexicans were lynched at Yreka, California, in 1895; and
Italians at Tallulah, Louisiana, in 1899, and again at Erwin,
Mississippi, in 1901. Our Government was practically de-
fenseless against claims for indemnity because of our failure to
extend over these aliens the same protection that we extend
over our own citizens, and the final result of long diplomatic
correspondence in each case was the payment of indemnity
for the real reason that we had not performed our interna-
tional duty. In these discussions our State Department
from time to time undertook to shelter itself behind the dis-
tribution of power in our constitutional system, and the fact
that there was no law of the United States providing for any
redress except at the hands of the State officials in the very
locality where prejudice led to the injury. Yet when an
American citizen was injured by a mob in Brazil in 1875, the
dispatch of Secretary Fish to the American Minister at Rio
de Janeiro said:
You represent that the facts as set forth in the memorial of the claimant
are admitted by that Government, which, however, denies its accounta-
CITIZENS RESIDING ABROAD
53
bility and says that the province where the injury to Mr. Smyth took place
is alone answerable. Supposing, however, the case to be a proper one for
the interposition of this Government, the reference of the claimant to the
authorities of the province for redress will not be acquiesced in. Those
authorities cannot be officially known to this Government. It is the Im-
perial Government at Rio de Janeiro only which is accountable to this
Government for any injury to the person or property of a citizen of the
United States committed by the authorities of a province. It is with that
Government alone that we hold diplomatic intercourse. The same rule
would be applicable to the case of a Brazilian subject who, in this country,
might be wronged by the authorities of a State.
And President Harrison, in his message to Congress of
December 9, 1891, relating to the lynching of Italians at
New Orleans in that year, said:
Some suggestions growing out of this unhappy incident are worthy the
attention of Congress. It would, I believe, be entirely competent for Con-
gress to make offenses against the treaty rights of foreigners domiciled in
the United States cognizable in the Federal Courts. This has not, how-
ever, been done, and the Federal officers and Courts have no power in such
cases to intervene either for the protection of a foreign citizen or for the
punishment of his slayers. It seems to me to follow, in this state of the
law, that the officers of the State charged with police and judicial powers
in such cases must, in the consideration of international questions growing
out of such incidents, be regarded in such sense as Federal agents as to
make this Government answerable for their acts in cases where it would be
answerable if the United States had used its constitutional power to define
and punish crimes against treaty rights.
It is to be hoped that our Government will never again
attempt to shelter itself from responsibility for the enforce-
ment of its treaty obligations to protect foreigners by alleg-
ing its own failure to enact the laws necessary to the discharge
of those obligations.
The most frequent occasions of appeal by citizens for pro-
tection in other countries arise upon the assertion that justice
has been denied them in the courts, and this appears, unfor-
tunately, to be a frequent occurrence. The justification of
such complaints does not rest upon any obligation of another
country to furnish any better or different judicial relief or
54
INTERNATIONAL SUBJECTS
procedure to foreigners than is provided for the citizens of the
country itself, but it results from the fact that in many coun-
tries the courts are not independent; the judges are remov-
able at will; they are not superior, as they ought to be, to
local prejudices and passions, and their organization does not
afford to the foreigner the same degree of impartiality which
is accorded to citizens of the country, or which is required by
the common standard of justice obtaining throughout the
civilized world. When justice is denied for such reasons
there is a failure on the part of the government to perform
its international duty, and a right on the part of the govern-
ment whose citizen has failed to secure justice to demand
reparation.
A large proportion of such complaints are, however, with-
out just foundation. Citizens abroad are too apt to complain
that justice has been denied them whenever they are beaten
in a litigation, forgetting that, as a rule, they would complain
just the same if they were beaten in a litigation in the courts
of their own country. When a man goes into a foreign coun-
try to reside or to trade he submits himself, his rights, and
interests to the jurisdiction of the courts of that country. He
will naturally be at a disadvantage in litigation against citi-
zens of the country. He is less familiar than they with the
laws, the ways of doing business, the habits of thought and
action, the methods of procedure, the local customs and pre-
judices, and often with the language in which the business is
done and the proceedings carried on. It is not the duty of a
foreign country in which such a litigant finds himself to
make up to him for these disadvantages under which he
labors. They are disadvantages inseparable from his pros-
ecuting his business in a strange land. A large part of the
dissatisfaction which aliens feel and express regarding their
treatment by foreign tribunals results from these causes,
which furnish no just ground for international complaint. It
CITIZENS RESIDING ABROAD
55
is very desirable that people who go into other countries shall
realize that they are not entitled to have the laws and police
regulations and methods of judicial procedure and customs of
business made over to suit them, or to have any other or
different treatment than that which is accorded to the
citizens of the country into which they have gone; so long
as the government of that country maintains, according to
its own ideas and for the benefit of its own citizens, a sys-
tem of law and administration which does not violate the
common standard of justice that is a part of international
law; and so long as, in conformity with that standard, the
same rights, the same protection, and the same means of
redress for wrong are given to them as are given to the citi-
zens of the country where they are. On the other hand,
every one who goes into a foreign country is bound to obey
its laws, and if he disobeys them he is not entitled to be pro-
tected against punishment under those laws. It follows,
also, that one in a foreign country must submit to the incon-
venience of proceedings that may be brought in accordance
with law upon any bona fide charge that an offense has been
committed, even though the charge may not be sustained.
Nevertheless, no violation of law can deprive a citizen in a
foreign country of the right to protection from the govern-
ment of his own country. There can be no crime which leaves
a man without legal rights. One is always entitled to insist
that he shall not be punished except in accordance with law,
or without such a hearing as the universally accepted prin-
ciples of justice demand. If that right be denied to the most
desperate criminal in a foreign country, his own government
can and ought to protect him against the wrong.
Happily, the same causes which are making questions of
alien protection so frequent are at the same time bringing
about among all civilized peoples a better understanding of
the rights and obligations created by the presence of the alien
56
INTERNATIONAL SUBJECTS
in a foreign country; a fuller acceptance of the common in-
ternational standard of justice, and a gradual reduction of
the local prejudices and misunderstandings which are in
the way of the alien's getting his full rights. Discussions
between governments upon complaints of wrong to their
citizens tend more and more to relate to questions of fact
upon the determination of which accepted and settled rules
can be readily applied. And in all nations the wise and sound
policy of equal protection and impartial justice to the alien is
steadily gaining acceptance in the remotest parts and
throughout even the least instructed communities.
THE FUNCTION OF PRIVATE CODIFICATION
IN INTERNATIONAL LAW1
PRESIDENTIAL ADDRESS AT THE FIFTH ANNUAL MEETING
OF THE AMERICAN SOCIETY OF INTERNATIONAL LAW
WASHINGTON, APRIL 27, 1911
THOP
(HE increasing frequency of arbitration and the pressure
for a regular Court of International Justice composed of
permanent judges, have given new emphasis to the demand
for what is called the codification of international law.
The process and the result intended to be described when
the term codification is applied to international law involves
something very different from the codification of municipal
law. The codifier of any part of the law of a nation finds the
law with which he is to deal already in existence and authen-
ticated. It may be confused in form and apparently un-
related in its parts: it may be scattered through the statu-
tory enactments of many years and the declarations of a
multitude of judicial decisions; the codifier may have to
struggle with difficult questions of apparent inconsistency, of
doubtful repeal, of obscurities in expression calling for inter-
pretation and construction, and with conflicts of judicial
opinion; but the expressions which he considers all come
from the same law-making power. Somewhere in the mass of
material is to be found the final expression of legislative will,
the controlling decision of the courts, and when these are
1 The reader's attention is called to the fact that a second address on the subject
of the Codification of International Law, was delivered by Mr. Root at the joint
meeting of the Subsection on International Law and the American Institute of
International Law at the Second Pan-American Scientific Congress, Washington,
D. C., December 30, 1915, which appears at page 429 of this volume.
57
58
INTERNATIONAL SUBJECTS
have
found everything inconsistent with them may be rejected as
repealed or overruled. The codifier's task is to find what the
rules really are; to put them in due relations to each other
under appropriate heads in accordance with some systematic
scheme of arrangement; to bring order out of confusion; to
furnish a methodical statement of the results of his re-
searches which may make the law plain to the people who
live under it and may relieve countless lawyers from the
necessity of going through the same wearisome process of
inquiry in each separate case. When the work is complete,
if it is acceptable, the legislative power of the State puts its
stamp of approval upon it and resolves any doubts or uncer-
tainties by its acceptance of the codifier's conclusions. It
may indeed be that the research of the codifier and the
clearer view presented by a systematic arrangement will
revealed inadequacies of expression, incongruities, and
omissions in the existing law, but, as to these, the suggestions
of the codifier for remedying the defects discovered will be
accepted or rejected by the single fiat of the legislative body
which enacts the code.
In the main, to codify municipal law is to produce a syste-
matic, and authoritative statement of the law already
prescribed by a sovereign.
An attempt to codify international law must deal with
entirely different material and must involve a very different
process. Lord Mansfield has described the law of nations as
“ founded upon justice, equity, convenience, the reason of
the thing and confirmed by long usage.
When any one undertakes to produce a systematic state-
ment of the rules of international law, having no statutes
embodying it, no binding judicial decisions declaring it, no
deliverance of any law-making power establishing it, he must
have recourse to a vast mass of conflicting opinion expressed
by a multitude of text-writers, of publicists, of the authors of
>>
FUNCTION OF PRIVATE CODIFICATION
59
0
diplomatic correspondence, as to what is just, what is equi-
table, reasonable, convenient, with very defective and partial
evidence of acceptance by the civilized nations of opinions
one way or another upon these questions. He will find it
possible by research to secure evidence of the acceptance of
certain very general rules of conduct, of certain ethical
principles, of many partial and a few general usages and pre-
cedents, and the conventional acceptance of a few specific
rules designed to make certain the practical application of
general principles. A very great part, however, of the so-
called rules of international law, the relevancy of which to the
practical affairs of life has been perceived, and which have
been the subject of discussion among international lawyers,
he will find to be of such doubtful authority, to rest upon
such uncertain and partial acceptance by governmental
authority, or upon such vague and unsatisfactory evidence
of usage, that they will certainly be open to dispute when-
ever cases involving diverse interests arise; and any proper
statement of them must be, not that this is the law, but that
this ought to be the law, or this is the better opinion, or this
is more generally received as being the rule which should
govern. The substantial work of international codification is,
not merely to state rules but to secure agreement as to what
the rules are, by the nations whose usage must confirm them.
Except as a means to this end, any codification of international
law can be of little value except as a topical index and guide
to the student. As a means to this end, to be properly used
and followed out, it is of very great importance to press for-
ward the work of codifying international law.
To codify municipal law is to state in systematic form the
results of the law-making process already carried on by a
nation through its established institutional forms. To codify
international law is primarily to set in motion and promote
the law-making process itself in the community of nations in
}
60
INTERNATIONAL SUBJECTS
which the institutional forms appropriate for the carrying on
of such a process have been so vague, indistinct, uncertain,
and irregular that they could hardly be said to exist at all.
The nations are a law-making power. When by their
confirmation of a rule of justice they make it a law of nations,
it is truly a law and cannot be violated without punishment.
But no government ever has been or can be conducted suc-
cessfully except through the creation of institutions by the
orderly working of which the will of the governing power
becomes transmuted into specific rules of action made effec-
tive and applied to the affairs of life. In the absence of
institutional forms through which the process of international
law-making may be carried on with regularity, the process is
very slow and difficult. It is hindered by two facts resting
in human nature. The first is, that while international law
can be made only by the assent of governments, governments
ordinarily concentrate their attention on propositions of
international law affecting any given subject only when there
is some practical, concrete case arising in their own interna-
tional relations and requiring the application of a rule.
Governments are practical organizations dealing with actual
conditions, continually pressed by immediate difficulties, and
the men engaged in them ordinarily have but little time and
strength to devote to questions which for practical purposes,
so far as they themselves are concerned, seem academic
because they have not yet arisen or may possibly never arise.
Every foreign office is fully occupied with questions that it
must decide, and, as a rule, foreign offices will not concern
themselves with any other question unless they are moved
by some special impulse of external pressure or by the
promptings of exceptionally far-sighted policy.
On the other hand, it is a matter of common observation
that the only way to secure a general agreement upon a rule
of action is to secure consideration of it at a time when there
FUNCTION OF PRIVATE CODIFICATION
61
is no concrete case calling for its application; when there
are no diverse interests tending to produce different views
as to what the rule should be.
This is very well illustrated by the experience of all the
States which live under written constitutions. For example,
in all the States of our American union there is a substantial
similarity in a series of constitutional provisions not merely
expressing general principles of justice but stating specific
rights designed practically to insure the benefit of those
principles to the individual citizen, such as the prohibition
against taking private property for public use without com-
pensation; against depriving one of life, liberty, or prop-
erty, without due process of law; against being put twice in
jeopardy for the same offense; against being compelled to
testify against one's self; against unreasonable searches and
seizures; against excessive bail and cruel and unusual
punishment; against State action impairing the obligation
of contracts, etc. These rules are adopted through a process
which does not deal at all with concrete cases. They are
agreed upon by the people of the States as rules of abstract
justice. There is no American State in which the people
would under any condition abandon them; yet it would be
difficult to find any State in which there are not attempts
made every year on the part of the officers of government to
evade and override these very rules in concrete cases. In-
deed the reason why our people put such provisions into our
constitutions is that they feel that if they do not make such
rules of action binding when there is no practical question at
issue, they themselves will not observe the rules when a prac-
tical question is presented. They know that the time for
agreeing upon a just rule of action and the occasion for
applying a rule of action must be separate and distinct, or
the interest of the particular occasion will override and con-
trol the law-maker's sense of justice. Of course these con-
62
INTERNATIONAL SUBJECTS
}
:
siderations apply much more strongly in the making of an
international law; because the particular occasion for the
application of an international rule ordinarily is created by
the existence of diverse interests which make very difficult
any agreement as to what the rule of justice is.
It thus appears that in the ordinary course of international
affairs the only occasions when it is possible to secure the
attention of a law-making power to questions as to what the
rules of law are or ought to be, are the very occasions when it
is most difficult for the law-making powers to agree upon
such rules, that is, the most difficult for them to establish a
rule as law. The movement for codification of international
law is an expression of a natural impulse on the part of those
who are interested in international relations to remedy this
failure of national governments to function as an interna-
tional law-making power. The movement has proceeded
along several apparently distinct lines. The first has been
the line of individual codification by temperamental succes-
sors to Jeremy Bentham - men whose natures moved them
to evoke order out of confusion and to give system and
definiteness to the subject-matter contained in the vast mass
of writings by publicists upon international law, often vague
and indefinite, often repetitious and prolix, often contentious
and prejudiced. The forty-five years which have passed
since, at the instance of Mr. David Dudley Field, the British
Association for the Promotion of Social Science appointed a
committee to prepare and report the outline of an interna-
tional code have been a period not of stagnation but of
extraordinary growth in the direction of international law-
making. Although Mr. Field alone did anything under the
committee appointment, he produced his own admirable draft
outlines of an international code in 1872. In the meantime
the codification by Professor Bluntschli of Heidelberg, had
been published in 1868. The code of Pasquale Fiore, of the
FUNCTION OF PRIVATE CODIFICATION
63
University of Naples, was published in 1888, and in 1906 the
project for a code of public international law by M. Duplessix
was published at Paris and crowned by the Bureau of Interna-
tional Peace. A comprehensive draft of a statute has thus
been made in four different countries from four different
national points of view at different times and upon independ-
ent, individual initiative.
In the meantime also another process has been going on
much like the discussion to which the provisions of proposed
laws are subject in committee under ordinary methods of
legislative procedure. That process has been carried on by
voluntary international associations of great dignity and
consequence.
The Institute of International Law established at Ghent
in 1873 has devoted itself to the scientific study and discus-
sion of the law. Closely limited in number, composed entirely
of eminent experts whose qualifications have already been
demonstrated by their individual writings, filling the vacan-
cies in its number by its own selection, it has rendered very
great services in the systematic development of the science
of international law. It has drafted and adopted, after full
discussion and mature deliberation, model codes upon a great
number of subjects and has bestowed great benefits upon
mankind by leading the way in the study of international
law from the philosophical and historical point of view.
The Association for the Reform and Codification of the
Law of Nations, organized at Brussels in the same year,
1873, under the initiative of James B. Miles, the Secretary
of the American Peace Society, and with the coöperation of
David Dudley Field, Theodore Dwight Woolsey, William
Beach Lawrence, Emory Washburn, Elihu Burritt, and
many other distinguished Americans, is still active under its
new title of the International Law Association. Unlimited
in number, welcoming to its lists all competent persons,
64
INTERNATIONAL SUBJECTS
including not merely scientific students of the law from all
countries, but merchants, men of affairs, underwriters, ship
owners, economists, municipal lawyers, politicians, repre-
sentatives of chambers of commerce and peace societies, it has
discussed questions of international law from many practical
and popular points of view and has dealt with the application
of scientific principles to the actual conditions of international
trade and intercourse.
In the meantime also a great number and variety of inter-
national societies for specific purposes have arisen, associa-
tions devoted to political economy; to the promotion of
commerce and industry; to navigation and railroads; to
penology and criminal anthropology; to the legal protection
of travellers and of children and of animals; to the protection
of industrial property and of artistic and literary property;
to reforming the abuse of alcoholic drinks and the suppression
of immoral literature; to libraries and bibliography; to
education and insurance; to sanitation and hygiene and
demography; to universal peace, and a universal language;
to engineering and architecture and agriculture; to more
separate sciences and more different reforms than one can
well recall without a memorandum. The recently established
Central Office of International Institutions at Brussels in-
vited a congress of representatives of such associations to
meet at Brussels in the year 1910, and representatives of one
hundred and thirty-four international associations attended
the congress. The investigation of the Central Office devel-
ops the fact that there are about three hundred such inter-
national associations, a large part of them quite ignorant of
the others' existence.
Most of them are not consciously endeavoring to develop
international law, but they are building up customs of private
international action. They are establishing precedents,
formulating rules for their own guidance, many of them press-
FUNCTION OF PRIVATE CODIFICATION
65
ing for uniformity of national legislation and many of them
urging treaties and conventions for the furtherance of their
common purposes. A great part of them represent a multi-
tude of national associations of which the international
association is a federation. Their activity is making a multi-
tude of leaders of thought in almost every department of
human effort familiar with a field which transcends the
limits of any national law and in which, if regulation be
needed at all, it must be found in international agreement.
I have not endeavored to make an exhaustive enumera-
tion, but merely to give instances indicating the existence
during the last half-century of widespread, continuous, and
intense private, unofficial action tending in the direction of
international law-making.
But all of this private activity did not of itself make inter-
national law. However plainly founded upon justice, equity,
convenience, and the reason of the thing a rule might be, in
order to be law it must be confirmed by the nations. And
until the Peace Conference at The Hague in 1899, govern-
ments, that is to say, the only powers that could really make
international law, had responded but indifferently and within
narrow limits to the steadily growing unofficial pressure.
There were, it is true, a number of treaties by which na-
tions undertook to regulate their future conduct in specific
directions, such as, the Slave-Trade Treaty, in 1890; the
establishment of the International Bureau of Weights and
Measures, in 1875; the Convention for the International
Protection of Industrial Property, in 1883; for the Protection
of Submarine Cables, in 1884; for the Exchange of Official
Documents, in 1886; for the Publication of Customs Tariffs,
in 1890; the agreement made at Saint Petersburg for the Pro-
hibition of the Use of Explosive Bullets, in 1868; and the Ge-
neva Convention relating to the Treatment of the Wounded
of Armies in the Field, in 1864. But mere agreements by
)
66
INTERNATIONAL SUBJECTS
which nations stipulate as to their future conduct do not of
themselves make international law. They are binding only
as contracts generally are binding. It is true also that the
results of private formulation and discussion of rules of inter-
national law, well known to the foreign offices of the world,
produced an effect upon the conduct of nations tending to
bring about that usage which in the long course of time
would ultimately be capable of proof as amounting to a
confirmation.
There were also during the same period a few exceptional
instances of a new departure in the way of making interna-
tional law by substituting a formal governmental declaration
of the law for the proof of conduct in specific instances nec-
essary to establish confirmation by long usage.
The difficulties experienced in the Crimean War led the
negotiators of the Treaty of Peace in 1856 to embody in the
Declaration of Paris a statement of four rules affecting cap-
tures at sea, three of which received general adherence. The
requirements of a great volunteer army, not very familiar
with the history and customs of warfare, in 1863, led to the
formulation by Doctor Francis Lieber of his famous instruc-
tions for the government of the armies of the United States
in the field a code of one hundred and fifty-seven articles,
which was approved by President Lincoln as General
Order No. 100 of 1863." This codification produced among
the European publicists of that day an impression which
time has not weakened. Its intrinsic merit and its practical
application on a large scale, although by a single govern-
ment, gave it a distinction and authority in the opinions of
mankind which it has never lost.
When Great Britain and the United States were about to
submit the Alabama claims to arbitration in 1871 they
agreed so far as they could upon the law regarding the rights
and duties of neutrals which should govern the arbitrators,
FUNCTION OF PRIVATE CODIFICATION
67
and formulated their agreement in the three rules of the
Treaty of Washington. The success of the Geneva arbitra-
tion and the great impression produced by that illustration
of the practicability of peaceable judicial settlement gave
great credit to the steps by which the result was attained;
but of course the agreement of two nations did not make the
three rules of the treaty international law any more than
President Lincoln's approval of Doctor Lieber's code made
that international law.
The year 1899 found two bodies of actors in the field of
international law development - the private persons who
had been discussing and formulating and codifying on the
one hand, and the governments, who alone had power to
make law, on the other hand, quite separate and distinct;
the codifiers apparently pure theorists engaged in academic
discussion; the governments apparently stolid and indif-
ferent to all but the specific difficulties with which they
were called upon to deal from day to day. Then a very great
event was brought about. It was unpremeditated, unin-
tended, and unforeseen. The Czar of Russia, by his note of
August 12-24, 1898, inspired by a noble humanitarian senti-
ment, had called an international conference for the specific
purpose of considering the limitation of armaments. In
that note Count Mouravieff said:
To put an end to these incessant armaments and to seek the means of
warding off the calamities which are threatening the whole world, —- such
is the supreme duty which is today imposed on all States.
Filled with this idea, His Majesty has been pleased to order me to pro-
pose to all the Governments whose representatives are accredited to the
Imperial Court, the meeting of a conference which would have to occupy
itself with this grave problem.
The powers assented to the Russian proposal, but before
the conference met it had become evident that there was no
possibility whatever of securing an agreement upon any plan
to accomplish the purpose for which the conference was
68
INTERNATIONAL SUBJECTS
called. If public failure was to be avoided it was necessary
to find something for the conference to do, and for the con-
ference to do something quite apart from its original purpose.
What the conference did was to bridge the chasm between
individual opinion and government action; between the
codifiers of international law and the makers of international
law. Then was inaugurated for the first time an institution
through which instructed, deliberate, and mature opinion
might find the method and machinery for its direct and effec-
tive development into law through the concerted action in
prescribed and orderly procedure, of the law-making powers
constituting the community of nations. The Second Hague
Conference in 1907, in its broader and progressive results
and its provision for still a third conference, made certain the
continued life of the institution. In these great assemblies
the work of the codifiers bore fruit. Lieber's epoch-making
code of rules for the conduct of armies in the field became
law. The three rules of the Treaty of Washington became law.
Much of the painstaking and public-spirited work of the
Institute of International Law, and notably that contained
in its codification of the laws of war on land, adopted at
its meeting of 1880, became law. The patient thought
which had evoked from the wilderness of precedent and
philosophical discussion, and had tested and codified and
formulated in systematic statement the rules that ought to
govern nations, had prepared material, directed thought,
and created opinion which made it possible for The Hague
conferences to act. The instructed thought of the world, the
sentiment of the world in favor of effective law, the belief of
the world in the possibility of effective law, had been led to
such a condition that the atmosphere of the conferences dis-
couraged factious opposition, gave heart to the friends of
progressive development, and disappointed the cynical
disbelief of hide-bound reactionaries.
FUNCTION OF PRIVATE CODIFICATION
69
1
The success of The Hague conferences was possible because
in the fullness of time the world was ready for them; and the
world was made ready by the voluntary service of a multitude
of private, unofficial workers in the field of international law
working out just conclusions by scientific methods in practical
form and urging upon the attention of mankind the need
and the possibility of extending the control over nations of
universally accepted law. While mankind has looked with
approval upon the specific results attained by the two Hague
conferences, it does not yet appreciate the tremendous sig-
nificance of the institution which has been created, or fully
discern the fact that a new era in the law of nations has been
inaugurated; and very few men appreciate the great part
which has been played by the unofficial international lawyer
in this great movement of civilization.
The final act of the Second Hague Conference declared:
Finally, the Conference recommends to the powers the assembling of a
Third Peace Conference, which might be held within a period correspond-
ing to that which has elapsed since the preceding conference, at a date to
be fixed by common agreement between the powers, and it calls their at-
tention to the necessity of preparing the programme of this Third Con-
ference a sufficient time in advance to ensure its deliberations being
conducted with the necessary authority and expedition.
In order to attain this object the Conference considers that it would be
very desirable that, some two years before the probable date of the meet-
ing, a preparatory committee should be charged by the governments with
the task of collecting the various proposals to be submitted to the con-
ference, of ascertaining what subjects are ripe for embodiment in an inter-
national regulation, and of preparing a programme which the governments
should decide upon in sufficient time to enable it to be carefully examined
by the countries interested. This committee should further be intrusted
with the task of proposing a system of organization and procedure for the
conference itself.
Here lies the pressing duty of the international lawyer.
What subjects shall be “ripe for embodiment in international
regulation ” when the next great law-making council of the
nations convenes; where lies the greatest need; in what
70
INTERNATIONAL SUBJECTS
direction are the lines of least resistance; upon what subject
is general opinion most nearly ready for crystallization.
That some subject shall be ready with opinions sufficiently
matured to make it possible for a conference within the short
space of a few months to reach effective conclusions is vital
to the continuance of the progress in which we are all so
deeply interested. Now, as heretofore, the work of prepara-
tion must be done chiefly upon private and unofficial initia-
tive. Codifiers must draft and systematize and clarify.
Associations must discuss and obviate objections, and recon-
cile the philosophical and the practical, and work out con-
clusions and educate opinion. Industry, learning, accurate
thought, knowledge of practical affairs and breadth of view
must prepare the definite expression of what has been found
to be just and reasonable, so that there may be that formal
acceptance which shall make it international law.
The necessity of this development of international law to
the movement for international judicial settlement is well
illustrated by the Conference of London. The convention of
the Second Hague Conference for the establishment of an
international Prize Court marks the furthest point to which
the movement for the judicial settlement of international dis-
putes has gone. It establishes a regular court of justice
composed of judges appointed to the Court and paid a fixed
compensation as distinguished from arbitrators selected for
a particular case, with compulsory jurisdiction in cases of
prize either by appeal from or a rehearing notwithstanding
the decisions of national tribunals.
It provides that if there be a treaty between the parties,
the treaty provisions shall govern, but that, “ in the absence
of such provisions the Court shall apply the rules of inter-
national law. If no generally recognized rule exists, the
Court shall give judgment in accordance with the general
principles of justice and equity.”
!
FUNCTION OF PRIVATE CODIFICATION
71
When Great Britain came to consider the ratification of
this convention it seemed to her government that there were
so many important questions coming within the jurisdiction
of the Court upon which no generally recognized rule existed
and that there was so much doubt as to how the Court
would apply the general principles of justice and equity that
the interest of her naval power and vast commerce, required
some further agreement as to the law which the Court was to
administer. Accordingly a new conference of the principal
naval powers was called by Great Britain and met in London
in 1908.
The conference was attended by the representatives of
Germany, the United States, Austria-Hungary, Spain,
France, Great Britain, Italy, Japan, the Netherlands and
Russia. After months of discussion it adopted a declaration
concerning the laws of naval war, in seventy-one articles,
classified in nine chapters, concerning blockade in time of
war, contraband, unneutral service, destruction of neutral
prizes, transfer to a neutral flag, enemy character, convoy,
resistance to search, and compensation. The declaration
settled many questions discussion upon which had been
historic. The operative provision was in these words:
The signatory powers are agreed that the rules contained in the fol-
lowing chapters correspond in substance with the generally recognized
principles of international law.
The declaration concluded with an invitation for the adher-
ence of other powers. How universal the confirmation of the
declaration may be or what modification, if any, it may
require before it becomes final is not yet certain. But the
procedure of the conference is a model for international
declaratory legislation. Its success is proof of the practica-
bility of effective codification and its origin is evidence that a
complete system for the judicial settlement of international
disputes will require the codification of international law.
72
INTERNATIONAL SUBJECTS
It is cause for satisfaction that this Association has under-
taken and is proceeding in so practical a way to do its share in
this great work of preparation. It is to be hoped that we may
work usefully in the spirit of those Americans who played
such an honorable part in the beginning of this great move-
ment by which, in the last half-century, the development of
international law has been carried so far.
:
THE REAL SIGNIFICANCE OF THE
DECLARATION OF LONDON
PRESIDENTIAL ADDRESS AT THE SIXTH ANNUAL MEETING
OF THE AMERICAN SOCIETY OF INTERNATIONAL LAW
WASHINGTON, APRIL 25, 1912
The arguments for the establishment of an international prize court are set
forth in the llowing address, in which are also stated the reasons for the meeting
of the Naval Conference of London, December 2, 1908, participated in by ten lead-
ing maritime powers. The document called the Declaration of London was adopted
by this conference February 26, 1909.
Through Mr. Root's intervention as senator, the Declaration of London was
advised and consented to by the United States Senate on April 24, 1912. The
legislation necessary to carry it into effect was passed by the British House of Com-
mons, but was rejected by the House of Lords on December 15, 1911. This failure,
and the failure of Great Britain to ratify the Declaration, prevented that country
from fixing a date for the deposit of ratifications at London, as contemplated by
Article 67 of the Declaration.
The provisions of the Declaration were incorporated in the German Prize Ordi-
nance of September 30, 1909, and issued on August 3, 1914; and in the French
Instructions sur l'application du droit international en cas de guerre of December 19,
1912.
Upon the outbreak of the war in 1914, the United States suggested to the belli-
gerent powers that the Declaration of London should be observed as a rule of con-
duct during the continuance of the war. This proposition did not meet with the
approval of all the belligerents, and was withdrawn. The Declaration of London
cannot therefore be considered as international law, although its moral effect has
been considerable.
THE
HE principal achievement of The Hague Conference of
1907 was the Convention for an International Prize
Court. That Convention provided for a real and permanent
court composed of judges who were to be appointed by the
contracting powers for terms of six years, were required to be
judges of known proficiency in questions of international
maritime law and of the highest moral reputation,” and were
to be paid a stated compensation from a fund contributed by
all the powers.
73
74
INTERNATIONAL SUBJECTS
Jurisdiction was conferred upon the court to review on
appeal all judgments of national prize courts. By a subse-
quent agreement, for the purpose of avoiding difficulties
presented by the constitutions of some of the signatory
powers, an alternative procedure was authorized under
which the new court might pass upon the question involved
in the case of prize de novo, and notwithstanding any judg-
ment of the national prize court, instead of passing upon
it
by way of appeal from that judgment. Article 7 of the
Convention provides:
If a question of law to be decided is covered by a treaty in force between
the belligerent captor and a power which is itself or whose subject or citizen
is a party to the proceedings, the court is governed by the provisions of the
said treaty.
In the absence of such provisions the court shall apply the rule of inter-
national law. If no generally recognized rule exists the court shall give
judgment in accordance with the general principles of justice and equity.
In estimating the value of such an agreement among the
civilized powers it is worth while even for a student of inter-
national law to recall the wide range and critical importance
of the questions to be included within the jurisdiction of the
new court.
When war breaks out between two considerable maritime
powers the commerce of the whole world is immediately
affected. Each belligerent nation undertakes, so far as it
can, to cripple its enemy both by direct military and naval
operations and by cutting off supplies, interfering with
sources of income, and generally weakening the enemy's
national power to maintain an army and navy.
The liability of enemy merchant ships to capture tends to
throw the commerce formerly carried on by the belligerent
nations into the hands of neutrals while the necessary policy
of each belligerent urges it to circumscribe and prevent so
far as it can the neutral commerce with the other belligerent.
Blockades and searches and seizures for carrying contraband
DECLARATION OF LONDON
75
goods are familiar methods of giving effect to this policy.
Added to this is the necessity of constant watchfulness by
belligerents to prevent neutral vessels from rendering direct
service to the enemy's forces, such as the transportation of
officers and troops or messengers, or the transmission of in-
telligence. In this way belligerents fall into an attitude of
suspicion toward neutral vessels and unfriendliness toward
neutral commerce, and the peaceable commerce of the
world falls into an attitude of resenting what it regards as
unwarranted interference. The most striking illustration of
this tendency is to be found in the tremendous conflicts
of the Napoleonic wars, when Pitt and Napoleon waged war
not merely with armies and navies but with British Orders
in Council and Continental Decrees. The Prussian Decree
which began the series at the instance of Napoleon, on
March 28, 1806, declared the coast of the North Sea closed
against Great Britain. On April 8, 1806, Great Britain retali-
ated for that Decree by the first Order in Council, which de-
clared the blockade of the Ems, the Weser, the Elbe, and the
Trave. On May 16, 1806, came the second Order in Council
declaring a blockade of the whole coast of the Continent
from the Elbe to Brest. On October 14, 1806, Napoleon
retaliated with the famous Berlin Decree, which prohibited
all commerce with England. On January 7, 1807, another
British Order in Council declared all neutral trading with
France, or from port to port with any possession of France,
or with any of the allies of France anywhere, to be ground for
condemnation. On December 17, 1807, Napoleon's Milan
Decree declared a sentence of outlawry upon England and
all English ships. It was impossible that such a process
should not involve all Europe in a universal war; and an
aftermath of England's enforcement of her policy upon the
neutral shipping of the United States was the War of 1812.
The Civil War in the United States gave rise to a multitude
176
INTERNATIONAL SUBJECTS
of controversies between the United States and Great Brit-
ain, arising on one side from the seizure by the United
States of numerous vessels charged with directly or indirectly
attempting to violate the blockade of the southern coast, or
with carrying contraband, and arising on the other side from
the fitting out of Confederate cruisers in the neutral ports of
Great Britain. The negotiations which led to the settlement
of both classes of these claims by arbitration under the
Treaty of Washington involved no slight strain upon the
temper and good sense of both nations, and the result was
reached against most violent protest on the part of many
who preferred war to concession. In the recent war between
Russia and Japan a feeling of strong resentment was created
in England' by Russia's course in sinking the British mer-
chantmen, the Knight Commander, the Saint Kilda, the
Hipsang, and the Allenton, and in the capture of the Ma-
lacca by Russian vessels which had passed the Dardanelles
and the Suez Canal as merchantmen and then converted
themselves into cruisers.
There is no more fruitful source of international contro-
versy, of international resentment and dislike, than in the
great multitude of questions relating to the rights and
wrongs of neutrals and of belligerents in a war between
maritime powers.
The tendency always is for the war
to spread through these controversies and exasperated feel-
ings, and the adjudication of questions by national prize
courts naturally fails to allay the irritation. Provision for
the international judicial determination of such questions
is adapted not only to preserve the substantial rights of
neutral commerce and of belligerents, but also to prevent
the spread of war much as municipal ordinances are framed
to check the spread of fire, and sanitary regulations to pre-
vent the communication of infectious disease. Considered
by itself, the concurrence of the major part of the civilized
DECLARATION OF LONDON
rying
world in the project of this convention was an event of
the first importance in the development of international
peace.
When Great Britain, however, came to consider the ratifi-
cation of the Prize Court Convention she found herself con-
fronted by practical considerations arising from her insular
position, her dependence upon foreign food supplies, the wide
extension of her colonial empire, her enormous merchant
marine, and the relation between the effectiveness of her
great navy and her national existence. The effect of these
considerations upon the Government of Great Britain is best
stated in the words of a communication which that Govern-
ment addressed on February 27, 1908, to the other principal
maritime powers. In that communication Sir Edward Grey
said:
Article 7 of the convention provides that, in the absence of treaty
stipulations applicable to the case, the Court is to decide the appeals that
come before it, in accordance with the rules of international law, or if no
generally recognized rules exist, in accordance with the general principles
of justice and equity.
The discussions which took place at The Hague during the recent con-
ference showed that on various questions connected with maritime war
divergent views and practices prevailed among the nations of the world.
Upon some of these subjects an agreement was reached, but on others it
was not found possible within the period for which the conference as-
sembled, to arrive at an understanding. The impression was gained that
the establishment of the International Prize Court would not meet with
general acceptance so long as vagueness and uncertainty exist as to the
principles which the Court, in dealing with appeals brought before it,
would apply to questions of far-reaching importance affecting naval
policy and practice.
His Majesty's Government therefore propose that another conference
should assemble during the autumn of the present year, with the object of
arriving at an agreement as to what are the generally recognized principles
of international law, within the meaning of paragraph 2 of article 7 of the
convention, as to those matters wherein the practice of nations has varied,
and of then formulating the rules which, in the absence of special treaty
provisions applicable to a particular case, the Court should observe in
dealing with appeals brought before it for decision.
78
INTERNATIONAL SUBJECTS
That is to say, the realization of the International Prize
Court must be postponed until an agreement can be reached
upon the rules of law and the principles of justice and equity
which the Court is to apply to international controversies.
No dissent from this view appears to have been expressed and
pursuant to the British invitation, Austria-Hungary, France,
Germany, Italy, Japan, Russia, Spain, the Netherlands, and
the United States, sent their delegates to the proposed con-
ference in London. The conference met on December 4,
1908, and continued to February 26, 1909.
The task of the conference was delicate and difficult. The
Declaration of Paris in 1856 had, it is true, furnished four
rules as a point of departure:
(1) Privateering is and remains abolished.
(2) The neutral flag covers enemy's merchandise with the exception of
contraband of war.
(3) Neutral merchandise, with the exception of contraband of war, is
not capturable under the enemy's flag.
(4) Blockades, in order to be obligatory, must be effective; that is to
say, maintained by a force sufficient to really prevent access to the coast
of the enemy
But the half-century which had elapsed since the Declara-
tion of Paris had shown that these rules left uncovered a
great field of controversy and that they had themselves given
rise to numerous questions for which they afforded no solu-
tion. The divergent views upon these subjects of contro-
versy had become intrenched in many traditional ideas of
different nations as to the requirements of their national
interests either as possible belligerents or possible neutrals,
and these ideas made concessions difficult, so difficult that at
the Second Hague Conference it had been found quite im-
practicable to reach any conclusions upon questions of this
character having real importance.
The members of the London Conference addressed them-
selves to their work with ability, knowledge, and good
1
79
DECLARATION OF LONDON
temper, and they agreed upon a code of rules which they
called a “Declaration concerning the Laws of Naval War”,
and which is known as the Declaration of London. The first
chapter of the Declaration, containing twenty-one articles,
deals with the law of blockade in time of war. The second
chapter covers the law of contraband, in twenty-three arti-
cles. The third chapter contains three articles upon the law of
unneutral service. The fourth chapter, seven articles, on the
destruction of neutral prizes. The fifth chapter, two articles,
on transfer of flag. The sixth chapter, four articles, on enemy
character. The seventh chapter, two articles regarding con-
voy. The eighth chapter, one article concerning resistance
to search. The ninth chapter, an article upon compensation.
Then follow seven final articles. The preamble of the Dec-
laration declares the Powers (naming them)
Considering the invitation which the British Government has given to
various Powers to meet in conference in order to determine together as to
what are the generally recognized rules of international law within the
meaning of Article 7 of the Convention of October 18, 1907, relative to the
establishment of an International Prize Court;
Recognizing all the advantages which in the unfortunate event of a
naval war an agreement as to the said rules would present, both as regards
peaceful commerce, and as regards the belligerents and as regards their
political relations with neutral Governments;
Considering that the general principles of international law are often in
their practical application the subject of divergent procedure;
Animated by the desire to insure henceforward a greater uniformity in
this respect;
Hoping that a work so important to the common welfare will meet with
general approval:
Have appointed as their Plenipotentiaries, that is to say: (names of
plenipotentiaries)
Who, after having communicated their full powers, found in good and
due form, have agreed to make the present Declaration:
PRELIMINARY PROVISION
The Signatory Powers are agreed in declaring that the rules contained
in the following Chapters correspond in substance with the generally
recognized principles of international law.
80
INTERNATIONAL SUBJECTS
It is interesting to observe that in the rules regarding con-
traband, the doctrine of continuous voyages, with which the
Americans were so much concerned during the Civil War, is
applied to absolute contraband but not to conditional contra-
band; that the great extension of the list of contraband
articles, which, in the war between Russia and Japan,
caused such general dissatisfaction among neutrals and
threatened to nullify the doctrine that free ships make free
goods, has been checked by a definite list of articles which
are not under any circumstances to be considered contra-
band, and by carefully framed provisions requiring affirma-
tive proof that goods are destined for the use of the armed
forces or a government department of the enemy as a condi-
tion upon the right to seize conditional contraband. It is also
interesting that the question so much discussed at the time of
the Trent affair between England and the United States has
been disposed of by the provision of Article 47 that any
individual embodied in the armed forces of the enemy who is
found on board a neutral merchant vessel may be made a
prisoner of war even though there may be no ground for the
capture of the vessel."
This by implication excludes civil agents such as Mason
and Slidell from capture but approves the method followed
by Captain Wilkes in taking persons assumed to be liable to
capture from the vessel and releasing the vessel.
It is not, however, my purpose to discuss the specific
provisions of these rules.
The Declaration was accompanied by a very lucid and
illuminating report prepared by M. Renault, which was pre-
sented to the Conference upon behalf of the Drafting Com-
mittee and which, under Continental usage, is to be treated
as an authoritative explanation of the text. The report says
of the Declaration:
DECLARATION OF LONDON
81
I
The body of rules contained in the Declaration, which is the result of the
deliberations of the Naval Conference, and which is to be entitled Declara-
tion concerning the Laws of Naval War, answers well to the desire expressed
by the British Government in its invitation of February, 1908. The ques-
tions of the programme are all settled except two, concerning which ex-
planations will be given later. The solutions have been deduced from the
various views or different practices and correspond to what may be called
the media sententia. They do not always harmonize absolutely with the
views peculiar to each country, but they do not shock the essential ideas of
any. They should not be examined separately, but as a whole, otherwise
one runs the risk of the most serious misunderstandings. In fact, if one
considers one or more isolated rules either from the belligerent or the neu-
tral point of view, he may find the interests with which he is especially
concerned have been disregarded by the adoption of these rules, but the
rules have their other side. The work is one of compromise and a mutual
concession. Is it, as a whole, a good work ?
We confidently hope that those who study it seriously will answer
affirmatively. The Declaration substitutes uniformity and certainty for
the diversity and the obscurity from which international relations have too
long suffered. The Conference has tried to reconcile in an equitable and
practical way the rights of belligerents and those of neutral commerce; it
is made up of Powers placed in very unlike conditions, from the political,
economic, and geographical points of view. There is on this account
reason to suppose that the rules on which these Powers are in accord take
sufficient account of the different interests involved, and hence may be
accepted without disadvantage by all the others.
Two questions proposed by Great Britain to the Confer-
ence remain unanswered: one, relating to the transforma-
tion of merchant vessels into warships on the high seas, and
the other, the question whether the nationality or the domi-
cile of the owner should be adopted in determining whether
property is enemy property. Upon these questions the
divergence of views remains unsettled. But throughout the
great field of controversy in this branch of international law
all existing differences have been settled by fair agreement
upon just and reasonable rules.
Professor Westlake said, in the Nineteenth Century, for
March, 1910:
82
INTERNATIONAL SUBJECTS
"
That the ten greatest naval powers of the world should have met in
conference on the laws of naval war as affecting neutrals, and that after
careful consideration they should have agreed upon a code so comprehen-
sive as that contained in the Declaration of London, would alone suffice to
make the year nineteen hundred and nine memorable to all who are inter-
ested in the improvement of international relations. It remains for the
year
nineteen hundred and ten to make that code binding on the parties by
ratification, after which the natural course of events will speedily make it
the binding code of the world.
It appeared to many of us, indeed, when the agreement was
reached and the Conference dissolved, that a great thing had
been done and that the way had been cleared to carry into
effect the Prize Court Convention and to establish upon a
permanent basis the judicial settlement of this class of inter-
national controversies through the application of an accepted
code of law.
Unfortunately, that belief has not been justified. An
excited controversy immediately arose regarding the effect of
the rules contained in the Declaration of London upon the
interests of Great Britain. One set of objectors declared
that the rules sacrificed the interests of Great Britain as a
belligerent. Another set asserted that the rules destroyed
the interests of Great Britain as a neutral. Both could not
be true, yet each set of objectors continued strenuously to
oppose the Declaration upon its own grounds.
An examination of the arguments on both sides in Great
Britain leads to the conclusion that Mr. Norman Bent-
wich sums up the controversy fairly when he says, in the
Fortnightly Review:
Great Britain should now be in a position to ratify The Hague Prize
Court Convention, when at least she has made the necessary changes in her
national prize law. She has come out very well indeed from the interna-
tional bargaining: she had most to lose by the previous uncertainty; she
has gained most by the settlement. At Paris, in 1856, she gave up one of
her most powerful belligerent rights - the right to capture enemy prop-
erty in neutral ships. Now in London she has not given up a single estab-
lished belligerent right of value, her sole concession being on the question
:
DECLARATION OF LONDON
83
of convoy which is more apparent than real; and, on the other hand, she
has gained a number of safe-guards for her neutral commerce, and a num-
ber of limitations of the alleged belligerent rights of other powers. There
is indeed a naval school which is bitterly hostile to the ratification of the
Declaration, on the ground that by it England gives up certain national
claims of long standing and concedes certain rights against which she has
long struggled. But the claims we give up have not been effectively exer-
cised by us, the rights we concede have regularly been practised against us.
Nevertheless the Prize Court Bill, introduced in Parlia-
ment to give effect to the Convention and the Declaration,
passed the House of Commons but was rejected by the House
of Lords, and so the matter stands.
This is unfortunate not merely because the rules of law
contained in the Declaration are wise and just and would be
beneficial to the world, but because the most promising for-
ward movement toward the peaceable settlement of inter-
national disputes is frustrated by the kind of treatment
which, if persisted in, must apparently prevent all forward
movement in the same line. The Prize Court Convention is
representative of the general movement for judicial settle-
ment. The Declaration of London is representative of the
agreement upon the rules of international law which is essen-
tial to the establishment of the practice of judicial settlement
in all other branches of international controversy.
For some time past there has been a growing impression
among men familiar with international affairs that the
obstacles to the development of any real system for the sub-
mission of international disputes to impartial decision are to
be found not so much in the unwillingness of nations to sub-
mit their disputes to such a decision, but in the lack of
adequate machinery through which such decisions may be
secured. The tendency of arbitrations in which representa-
tives of the disputing countries are joined with eminent
publicists from other countries for the determination of
international controversies is not to decide questions of fact
84
INTERNATIONAL SUBJECTS
and law, but it is to negotiate a settlement. Arbitrators as
a rule act as diplomatists under the diplomatic sense of hon-
orable obligation rather than as judges under the judicial
sense of honorable obligation. Their tendency is to do
what they think is wise and for the best interests of
all concerned and to get the controversy disposed of in
some way without too much ill feeling upon either side.
In this process the frequent failure of international law
to furnish any certain or undisputed guide for action
affords free opportunity for the personal predilections of
the arbitrator, often colored or determined by the pre-
vailing opinions in the country from which he comes;
and these opinions are often quite unlike those which pre-
vail among the people of either of the disputing countries.
It often happens, therefore, that the selection of the arbitra-
tors is the most critical and decisive step in the arbitration.
It is very difficult to apply to such a proceeding the analogy
of a judicial proceeding under municipal law for the trial and
decision of cases between private litigants. It may well be
that countries are unwilling to have their interests disposed
of in that way, although they would be perfectly ready to
submit their cases to the decision of judges acting under the
judicial sense of responsibility. Many of us are convinced
that the true line of development for the peaceable settle-
ment of international controversies is to be found in the
establishment of a real international court which shall hear
and determine questions instead of negotiating a settlement
of them. This question was much discussed in The Hague
Conference of 1907, which approved and recommended to
the Powers the adoption of a draft convention for the creation
of a Judicial Arbitral Court to be composed of judges ap-
pointed for fixed periods with stated compensation and
chosen from persons "fulfilling the conditions qualifying
them in their respective countries to occupy high legal posts,
DECLARATION OF LONDON
85
or to be jurists of recognized competence in matters of inter-
national law.” The procedure, powers, and jurisdiction of
the court were all provided for and the draft convention as
approved by the Conference was defective only in not deter-
mining how the judges should be appointed. The determina-
tion upon this matter was prevented by difference of opinion
between the larger and the smaller powers represented in the
Conference. The provision for a general judicial court with
jurisdiction to hear and determine all matters of international
dispute was thus carried within one step of the completeness
which was reached in the convention for the International
Prize Court. The Prize Court thus became the advance
guard of the proposed judicial system, the experiment upon
which the success of the whole plainly depends. President
Roosevelt, in his message to Congress of December 3, 1907,
said truly:
Not only will the International Prize Court be the means of protecting
the interest of neutrals, but it is in itself a step toward the creation of the
most general court for the hearing of international controversies, to which
reference has just been made. The organization and action of such a Prize
Court cannot fail to accustom the different countries to the submission of
international questions to the decision of an international tribunal, and we
may confidently expect the results of such submission to bring about a
general agreement upon the enlargement of the practice.
The relations between the project for the Prize Court and
the project for the general Judicial Arbitral Court are so
manifest that the United States has already proposed to the
other Powers an enlargement of the jurisdiction of the Prize
Court so that any question between the signatory Powers
can be heard and determined by the judges of the Prize
Court. This was done by instructions to the delegates of the
United States at the London Conference, dated February 6,
1909, by an identic circular note to the Powers represented
at that Conference dated March 5, 1909, and by a formal
communication from the Department of State to the Powers,
86
INTERNATIONAL SUBJECTS
dated October 18, 1909. The form given to the proposal in
the last mentioned communication from the American State
Department was that there should be
a further agreement that the International Court of Prize established by
the Convention signed at The Hague, October 18, 1907, and the judges
thereof shall be competent to entertain and decide any case of arbitration
presented to it by a signatory of the International Court of Prize, and that
when sitting as a Court of Arbitral Justice the said International Court of
Prize shall conduct its proceedings in accordance with the draft convention
for the establishment of a Court of Arbitral Justice, approved and recom-
mended by the Second Hague Peace Conference, on October 18, 1907.
!
I am advised that this proposal was favorably received and
that action to give it effect in some practicable form only
awaits the ratification of the Prize Court Convention. This
line of advance also is thus blocked by the failure to confirm
the Declaration of London.
This review of the origin and nature of the Declaration of
London and of the attendant conditions exhibits the true
significance of the Declaration. It is not merely a code of
useful rules. It is necessary to the existence of the Interna-
tional Prize Court and therefore to the existence of any
Judicial Arbitral Court. It is the one indispensable forward
step without which no practical progress can now be made in
the further development of a system of peaceable settlement
of international disputes. It is to be hoped that a fuller
realization of its far-reaching importance will soon lead to its
acceptance. I cannot avoid the conviction that a broad-
minded and statesmanlike treatment of this constructive
measure for practical progress in international relations, is of
greater value than merely benevolent but academic declara-
tions in favor of peace which are to be found in general
treaties of arbitration and in diplomatic correspondence and
in public speeches.
Indeed the whole practice of making general treaties of
arbitration cannot fail to be discredited by the failure, if
DECLARATION OF LONDON
87
there is to be a failure, of the Prize Court Convention, for
the cynical are sure to question the sincerity of general trea-
ties of arbitration covering the whole field of international
relations between nations which refuse to assent to this
convention covering but a small part of the same field.
FRANCIS LIEBER
PRESIDENTIAL ADDRESS AT THE SEVENTH ANNUAL MEETING
OF THE AMERICAN SOCIETY OF INTERNATIONAL LAW
WASHINGTON, APRIL 24, 1913
Tim
HIS year, 1913, is the fiftieth anniversary of a very
important event in the history of international law-
the adoption and enforcement by the American Government
of the code of rules governing the conduct of armies in the
field, which is known to the American army as General
Orders No. 100, of 1863. It happens that without any inten-
tion to create a coincidence the seventh annual meeting of
the American Society of International Law is appointed and
we are met here, exactly fifty years after the twenty-fourth
day of April, 1863, when President Lincoln promulgated
that famous order. It seems appropriate for this Society at
this time to celebrate the event by paying honor to Francis
Lieber, the author of the instructions embodied in the order.
In the early stages of the American Civil War both parties
put into the field immense armies, commanded for the most
part by volunteer officers drawn from the ordinary occupa-
tions of civil life and quite ignorant of the laws and usages
of
war. The sources of information were to be found only in
scattered text-books and treatises, most of them in foreign
languages, few of them readily accessible, and requiring the
painstaking and diligent labor of the student to search out
rules which were at the best subject to doubt and dispute.
It was manifest that the officers of the Union and Confeder-
ate armies had neither time nor opportunity to enter upon an
extended study of the international laws of war, and that
unless some one indicated to these uninstructed and un-
trained combatants what was and what was not permissible
89
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INTERNATIONAL SUBJECTS
1
in warfare, the conflict would be waged without those re-
straints upon the savage side of human nature, by which
modern civilization has somewhat mitigated and confined
the barbarous cruelties of war. Fortunately, General Hal-
leck, who was put in chief command of the Union army in
July, 1862, was an accomplished student of international law.
He had already published an excellent book on that subject.
While the duties of commanding general during an active
conflict left him no time for research and codification himself,
he knew what ought to be done and how it ought to be done;
and he called Francis Lieber, then a professor in Columbia
College, and already a publicist distinguished upon both
sides of the Atlantic, to the assistance of the Government.
The first service which Lieber rendered was the preparation
in 1862 of a statement or essay upon Guerilla Parties Con-
sidered with Reference to the Laws and Usages of War. One
cannot read this paper now, with its definite and lucid state-
ments based upon grounds of reason and supported by his-
torical reference, without feeling that it must have been a real
satisfaction to the burdened and harassed Union authorities
at Washington to have such a guide in dealing with the mul-
titude of cases continually arising in that debatable land
which intervenes between disciplined and responsible warfare
on the one hand and simple robbery and murder on the other.
On the seventeenth of December, 1862, by order of Secre-
tary Stanton, a board was created “ to propose amendments
or changes in the rules and articles of war and a code of regu-
lations for the government of armies in the field as authorized
by the laws and usages of war," and this board was made up
of Francis Lieber, LL.D., and four volunteer officers, Gen-
erals Hitchcock, Cadwalader, Hartsuff and Martindale.
That part of the board's work which consisted of preparing
the code of regulations appears to have been committed to
Dr. Lieber. The nature of the field upon which he entered
FRANCIS LIEBER
91
and the spirit in which he did his work are indicated by
Lieber's letter transmitting the result to General Halleck,
on February 20, 1863:
Here is the project of the code I was charged with drawing up. I am
going to send fifty copies to General Hitchcock for distribution, and I
earnestly ask for suggestions and amendments. I am going to send for
that purpose a copy to General Scott, and another to Honorable Horace
Binney. I have earnestly endeavored to treat of these grave topics
conscientiously and comprehensively; and you, well-read in the literature
of this branch of international law, know that nothing of the kind exists in
any language. I had no guide, no ground-work, no text-book. I can assure
you, as a friend, that no counselor of Justinian sat down to his task of the
Digest with a deeper feeling of the gravity of his labor, than filled my
breast in the laying down for the first time such a code, where nearly
everything was floating. Usage, history, reason, and conscientiousness,
a sincere love of truth, justice and civilization have been my guides; but
of course the whole must be still very imperfect.
Lieber's estimate of the work and of the occasion for it is
shown in a letter from him to General Halleck of May 20,
1863:
I have the copy of General Orders 100 which you sent me. The generals
of the board have added some valuable parts; but there have also been a
few things omitted, which I regret. As the order now stands, I think that
No. 100 will do honor to our country. It will be adopted as a basis for
similar works by the English, French, and Germans. It is a contribution
by the United States to the stock of common civilization. I feel almost
sad in closing this business. Let me hope it will not put a stop to our cor-
respondence. I regret that your name is not visibly connected with this
Code. You do not regret it, because you are void of ambition, — to a
faulty degree, as it seems to me I believe it is now time for you to
issue a strong order, directing attention to those paragraphs in the Code
which prohibit devastation, demolition of private property, etc. I know
by letters from the West and the South, written by men on our side, that
the wanton destruction of property by our men is alarming. It does in-
calculable injury. It demoralizes our troops; it annihilates wealth irre-
coverably, and makes a return to a state of peace more and more difficult.
Your order, though impressive and even sharp, might be written with
reference to the Code, and pointing out the disastrous consequences of
reckless devastation, in such a manner as not to furnish our reckless
enemy with new arguments for his savagery.
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INTERNATIONAL SUBJECTS
The instructions comprise one hundred and fifty-seven
articles. The scope of the work can be indicated briefly by
stating the titles of the ten sections in which the articles are
grouped:
Martial Law; Military Jurisdiction; Military Necessity; Retaliation.
Public and Private Property of the Enemy; Protection of Prisoners,
and especially Women; of Religion, the Arts and Sciences - Punishment
of Crimes Against the Inhabitants of Hostile Countries.
Deserters; Prisoners of War; Hostages; Booty on the Battlefield.
Partisans; Armed Enemies not Belonging to Hostile Armies; Scouts;
Armed Prowlers; War Rebels.
Safe Conduct; Spies; War Traitors; Captured Messengers; Abuse of
the Flag of Truce.
Exchange of Prisoners; Flags of Truce; Flags of Protection.
The Parole.
Armistice — Capitulation.
Assassination.
Insurrection; Civil War; Rebellion.
The provisions on these subjects give evidence of great learn-
ing and careful consideration. They cover the entire his-
torical field of questions which had arisen and the possibilities
of questions likely to arise, calling for instruction and direc-
tion. The definitions are clear, the injunctions and prohi-
bitions distinct and unambiguous, and, while the instrument
was a practical presentation of what the laws and usages
of war were, and not a technical discussion of what the
writer thought they ought to be, in all its parts may be
discerned an instinctive selection of the best and most hu-
mane practice and an assertion of the control of morals to
the limit permitted by the dreadful business in which the
rules were to be applied.
These instructions directed the action of the Union officers
and controlled the conduct of the Union forces during that
great war which ended in the triumph of the armies on which
their limitations were imposed. No one can say how far it
was due to the instructions, but in honoring the memory of
FRANCIS LIEBER
93
Francis Lieber we should not forget that after the surrender
and the triumph came reconciliation, friendship, the restora-
tion of a united country, and, beyond all human experience,
even within the lifetime of the generation which had waged
the conflict, freedom from the bitterness of spirit that time
cannot soften.
Although the instructions were prepared for use in a civil
war, a great part of them were of general application, and
they were adopted by the German Government for the con-
duct of its armies in the field in the war of 1870 with France.
It is interesting that this work of a simple private citizen
should become the law controlling the mightiest forces of
both the country of his adoption and the country of his birth.
The sanction of two powerful governments for these rules and
their successful employment in two of the greatest wars of
modern times gave to them an authority never before ac-
quired by any codification or statement of any considerable
number of rules intended for international application. The
prediction of Lieber that General Orders No. 100 would do
honor to our country, that it would be adopted as a basis for
similar works by the English, French, and Germans, and
that it would be a contribution by the United States to the
stock of common civilization, was justified. In the Brussels
Conference of 1874, convened at the instance of the Emperor
of Russia for the purpose of codifying the laws and customs of
war, the Russian delegate, Baron Jomini, as president of the
conference, declared that the project of an international con-
vention then presented had its origin in the rules of President
Lincoln. The convention agreed upon at Brussels was not
ratified, but in 1880 the Institute of International Law made
the work of the Brussels Conference and the work of Lieber,
which so far as it was of general application was incorporated
in that convention, the basis of a manual of the laws of war
upon land; and finally, in The Hague Conferences of 1899
94
INTERNATIONAL SUBJECTS
and 1907, the conventions with respect to the laws and cus-
toms of war on land gave the adherence of the whole civilized
world in substance and effect to those international rules
which President Lincoln made binding upon the American
armies fifty years ago. Writing of Lieber's work, Sheldon
Amos says in his book on Political and Legal Remedies for
War:
The instructions were, in fact, the first attempt to make a comprehen-
sive survey of all the exigencies to which a war of invasion is likely to give
rise; and it is said on good authority that, with one exception (that of
concealing in an occupied district arms or provisions for the enemy), no
case presented itself during the Franco-German War of 1870 which had
not been provided for in the American instructions.
Frederic de Martens, after describing the way in which
Lieber's work came to be done, says:
So it is to the United States of North America and to President Lincoln
that belongs the honor of having taken the initiative in defining with pre-
cision the customs and laws of war. This first official attempt to codify
the customs of war and to collect in a code the rules binding upon military
forces has notably contributed to impress the character of humanity upon
the conduct of the northern states in the course of that war.
Bluntschli says, in his article on Lieber's Service to Political
Science and International Law:
The Instructions for the Government of Armies of the United States in
the Field were drawn up by Lieber at the instance of President Lincoln,
and formed the first codification of International Articles of War. This
was a deed of great moment in the history of international law and civili-
zation. Throughout this work also we see the stamp of Lieber's peculiar
genius. His legal injunctions rest upon the foundation of moral precepts.
The former are not always sharply distinguished from moral injunctions,
but nevertheless, through a union with the same, are ennobled and exalted.
Everywhere reigns in this body of law the spirit of humanity, which spirit
recognizes as fellow-beings, with lawful rights, our very enemies, and which
forbids our visiting upon them unnecessary injury, cruelty, or destruction.
But at the same time, our legislator remains fully aware that, in time of
war, it is absolutely necessary to provide for the safety of armies and for
the successful conduct of a campaign; that, to those engaged in it, the
harshest measures and most reckless exactions cannot be denied; and that
FRANCIS LIEBER
95
tender-hearted sentimentality is here all the more out of place, because the
greater the energy employed in carrying on the war, the sooner will it be
brought to an end, and the normal condition of peace restored.
Then follows a very interesting statement by Bluntschli
which points out a consequence of the instructions not the
least in value to the student of international law and to the
development of that science upon which the hoped-for peace
of the world so largely depends. It appears that Bluntschli
found in Lieber's work the inspiration of his celebrated
codification of international law, for he says:
These instructions prepared by Lieber, prompted me to draw up, after
his model, first, the laws of war, and then, in general, the law of nations, in
the form of a code, or law book, which should express the present state of
the legal consciousness of civilized peoples.
Professor Ernest Nys sums up the far-reaching effect of
Lieber's codification by the statement:
The ideas of the American publicist have penetrated not only the scien-
tific world through the works of Bluntschli, but by the work of the Con-
ference of Brussels, in 1874, and The Hague in 1899 and 1907, they have
penetrated international politics.
When we recall the frightful cruelties upon combatants,
upon prisoners, upon citizens, the overturning of all human
rights to life and liberty and property, the fiendish malignity
of oppression by brutal force, which have characterized the
history of war, we cannot fail to set a high estimate upon the
service of the man who gave form and direction and effective-
ness to the civilizing movement by which man at his best,
through the concurrence of nations, imposes the restraint of
rules of right conduct, upon man at his worst, in the extreme
exercise of force.
Let me say something about the man himself. He was
born in Berlin on March 18, 1800. His childhood was passed
in those distressful times when the declaration of the rights of
man and the great upheaval of the French Revolution had
96
INTERNATIONAL SUBJECTS
inspired throughout the continent of Europe a conception of
popular liberty and awakened a strong desire to attain it,
while the people of Prussia were held in the strictest subjec-
tion to an autocratic government of inveterate and uncom-
promising traditions. In the meantime foreign conquest,
with the object lessons of Jena and Friedland and the Confed-
eration of the Rhine, threatened the destruction of national
independence; and love of country urged Germans to the
support of a government which the love of liberty urged
them to condemn. It was one of the rare periods in which
political ideas force themselves into the thought and feeling
of every intelligent life, and, alongside with the struggle for
subsistence, the average man finds himself driven by a sense
of necessity into a struggle for liberty, opportunity, peace,
order, security for life and property things which in ordi-
nary times he vaguely assumes to come by nature like the air
he breathes. So the early ideas of the child were filled with
deep impressions of the public life of the time. He remem-
bered the entry of Napoleon into Berlin after Jena. He
remembered the humiliation of the peace of Tilsit. He re-
membered Schill, the defender of Colberg, and Stein, and
Scharnhorst. He was a disciple of Dr. Jahn, the manual-
trainer of German patriotism. At fifteen, after the escape
from Elba, he enlisted in the Colberg regiment and fought
under Blücher at Waterloo. He was seriously wounded in
the Battle of Namur and had the strange and vital discipline
of lying long on the battlefield in expectation of death. He
was a member of patriotic societies and was arrested in his
nineteenth year, and imprisoned four months on suspicion of
dangerous political designs. He was excluded from member-
ship in the German universities, except Jena, where he re-
ceived his degree of Doctor of Philosophy in 1820. At
twenty-one he made his way to Greece with a company of
other young Germans, inspired, by a generous enthusiasm
FRANCIS LIEBER
97
for liberty, to an unavailing attempt to aid in the Greek War
of Independence. Returning penniless from Greece he found
his
way to Rome, became a tutor in the family of Barthold
Georg Niebuhr, then Prussian Ambassador, and there he
won the confidence and lifelong friendship of that great his-
torian whose influence in familiar intercourse both increased
the learning and calmed and sobered the judgment of the
impetuous youth. Returning to Prussia, he was again
arrested and imprisoned for nearly a year upon charges of
disaffection to the government. Released through the inter-
cession of Niebuhr, he went to England, and after a year's
hard struggle there, he came, in 1827, to the United States
and to Boston. Seeking employment he found it in taking
charge of the Boston Gymnasium. Through Niebuhr's good
offices he became the American correspondent of a group of
German newspapers. He devised a plan for the publication
of an encyclopedia, and for this he secured a distinguished
list of contributors and associates. He became its editor,
and in 1829 the publication of the Encyclopædia Americana
was begun. It was a distinct success. Lieber's connection
with it not only forced him to a broad and accurate knowl-
edge of American life, but brought him in contact with a
great range of leaders of American thought and opinion, and
this association gave him an intimate knowledge of American
social conditions and public affairs. Bancroft, and Hilliard, ,
and Everett, and Story, and Nicholas Biddle, and Charles
Sumner were among his friends. In June, 1835, he was made
Professor of History and Political Economy in South Caro-
lina College, and for twenty-two years he held that chair,
until, in 1857, he was called to Columbia College to be Pro-
fessor of Modern History, Political Science, International
Law, Civil and Common Law. His connection with Colum-
bia and his residence in New York continued until his death
in October, 1872. In the meantime, to the service as adviser
98
INTERNATIONAL SUBJECTS
to the Government, which I have already described, he added
the classification and arrangement of the Confederate archives
in the office of the War Department, and long served as um-
pire under the Mexican Claims Commission of July 4, 1868.
Lieber himself has said that his life had been made
up
of
many geological layers. The transition from his adventurous
youth to the life of an American college professor did indeed
carry him from igneous to sedimentary conditions. Under
the new conditions, however, his surpassing energy and
capacity for application found exercise in authorship. His
work on Political Ethics, published in 1838, and that on Civil
Liberty and Self Government, published in 1853, gave him high
rank among writers upon the philosophy of government.
Judge Story said of the former:
It contains by far the fullest and most correct development of the true
theory of what constitutes the state that I have ever seen. It abounds with
profound views of government which are illustrated with various learning.
To me many of the thoughts are new, and striking as they are new. I do
not hesitate to say that it constitutes one of the best theoretical treatises
on the true nature and objects of government which has been produced in
modern times, containing much for instruction, much for admonition, and
much for deep meditation, addressing itself to the wise and virtuous of all
countries.
And in an introduction to the latter work, Theodore Dwight
Woolsey said:
It would be a grateful task to speak at length here of the service Doctor
Lieber rendered to political science in this country. He was indeed
the founder of this science in this country in so far as by his method, bis
fulness of historical illustration, his noble, ethical feeling, his sound practi-
cal judgment, which was of the English rather than of the German type,
he secured readers among the first men of the land, influenced political
thought more than any one of his contemporaries in the United States, and
made I think, a lasting impression on many students who were forming
themselves for the work of life.
By a great variety of miscellaneous essays, addresses, and
magazine articles on subjects of education, penology, history,
FRANCIS LIEBER
99
biography, constitutional, and international law, he exercised
a powerful influence upon the development of American
thought. By voluminous correspondence with many fore-
most Americans who were engaged in public affairs he made
his influence felt upon the solution of specific questions in the
conduct of government. A correspondence of many years
with Charles Sumner is especially rich in matter of this
description.
The philosophical habit of the German, the practical habit
of the Englishman, the freedom from traditional limitations
upon thought of the American, the breadth of view of his
cosmopolitan experience, the intensity of his enthusiasm at
once for liberty and for order, and the strength of his genuine
sympathy for all mankind combined to set him in advance of
his time in his views upon international law and his proposals
for its development. We find him writing to Sumner on
December 27, 1861, after the Trent Affair more than fifty
years ago:
This would be a fair occasion to propose a congress of all maritime
nations, European and American, to settle some more canons of the law
of nations than were settled at the Peace of Paris, canons chiefly or
exclusively relating to the rights and duties of belligerents and neutrals on
the sea; for there lies the chief difficulty. The sea belongs to all; hence the
difficulty of the sea police, because there all are equals. I mean no codi-
fication of international law; I mean that such a congress, avowedly con-
vened for such a purpose, should take some more canons out of the cloudy
realm of precedents than the Peace of Paris did almost incidentally. Sup-
pose Russia, Austria, and other nations (naming them) could be induced
to send, each power, two jurists (with naval advisers if they chose), does
any one, who knows how swelling civilization courses in our history, doubt
that their debates and resolutions would remain useless, even though the
whole should lead, this time, to no more than an experiment? All those
ideas that are now great and large blessings of our race, having wrought
themselves into constitutions or law.systems, belonged once to Utopia.
On April 16, 1866, he writes to Bluntschli in Heidelberg:
Your intention to write a brief code on the Rights of Nations, in the
middle of the nineteenth century, is a noble and daring one. For a long
100
INTERNATIONAL SUBJECTS
time it was a favorite project of mine that four or five of the most distin-
guished jurists should hold a congress in order to decide on several impor-
tant but still unsettled questions of national equity, and perhaps draw up a
code. First I proposed that it should be an official congress under the
government, and corresponded with Senator Sumner on the subject. But
after a while it became clear to me that it would be much better if a private
congress were established, whose work would stand as an authority by its
excellence, truthfulness, justice, and superiority in every respect.
June 18, 1866, to his wife:
Have you read the noble declaration of Prussia, that she will not capture
enemies' property at sea during war ? Such things warm one like a glass
of Burgundy.
December 15, 1866, to Andrew D. White:
I fancy sometimes -- but only fancy --- how fine a thing it would be for
one of the Peabodies, or some such gold vessel, to give, say twenty-five
thousand dollars gold, for the holding of a private - i. e., not diplomatic,
although international congress of some eight or ten jurists, to concen-
trate international authority and combined weight on certain great points,
on which we have now only individual authorities. I have spoken about
this years ago to Mr. Field.
On June 11, 1868, to Sumner:
What an advance it would be — though requiring nearly twenty-two
centuries --- from the time when Thucydides said that private property
was not acknowledged at sea as on land, to the middle of the nineteenth
century, when private property even of the enemy - should be de-
clared to be protected, even floating without defence, on the wide sea.
I say that civilization would hardly have made or be able to make a greater
stride in our century, than by the United States and North Germany
agreeing on the great principle and thus inducing others to follow.
On May 7, 1869, to Judge Thayer:
The strength, authority, and grandeur of the law of nations rests on,
and consists in, the very fact that reason, justice, equity, speak through
men ' greater than he who takes a city'- single men, plain Grotius;
and that nations, and even Congresses of Vienna, cannot avoid hearing,
acknowledging, and quoting them. But it has ever been, and is still,
favorite idea of mine that there should be a congress of from five to ten
acknowledged jurists to settle a dozen or two of important yet unsettled
points -- a private and boldly self-appointed congress, whose whole author-
ity should rest on the inherent truth and energy of their own proclama.
а.
FRANCIS LIEBER
101
On April 10, 1872 to General Dufour, honorary president
of the International Committee of Geneva:
One of far the most effectual and beneficent things that, at this very
juncture, could be done for the promotion of the intercourse of nations in
peace or war (and there is intercourse in war, since man cannot meet man
without intercourse) one of the most promising things in matters of
internationalism, would be the meeting of the most prominent jurists of
the law of nations, of our Cis-Caucasian race one from each country in
their individual and not in any public capacity -- to settle among them-
selves certain great questions of the law of nations as yet unsettled, such
as neutrality, or the aid of barbarians, or the duration of the claims of
obligations, of citizenship. I mean settle as Grotius settled, - by the
strength of the great argument of justice. A code of proclamation, as it
were, of such a body, would soon acquire far greater authority than the
book of the greatest single jurist. I hope such a meeting may be brought
about in 1874.
On May 26, 1872, to Von Holtzendorff:
In 1846, in one of my writings, I recalled the fact that under Adrian,
professors were appointed to lecture in different places, and Polemon of
Laodicea instructed in oratory at Rome, Laodicea, Smyrna, and Alex-
andria. The traveling professor had a free passage on the emperor's ships,
or on the vessels laden with grain. In our days of steamboats and railroads
the traveling professor should be reinstated. Why could not the same
person teach in New York and in Strasburg ?
You will perceive that here was a proposal of the exchange
professorship, which we are putting in practice forty years
after. Here was another proposal which was realized by the
formation of the Institute of International Law. Of this
Professor Bluntschli says:
Lieber had great influence, I may add, in founding the Institut de
Droit International, which was started in Ghent, in 1873, and forms a per-
manent alliance of leading international jurists from all civilized nations,
for the purpose of working harmoniously together, and thus serving as an
organ for the legal consciousness of the civilized world. Lieber was the
first to propose and to encourage the idea of professional jurists of all
nations thus coming together for consultation, and seeking to establish a
common understanding. From this impulse proceeded Rolin-Jaequemyns'
circular letter, drawn up in Ghent, calling together a number of men emi-
nent for their learning. This latter proposal to found a permanent academy
102
INTERNATIONAL SUBJECTS
for International Law met with general acceptance, but this was merely a
further development of the original idea of Lieber, which was at the bottom
of the whole scheme.
Here also was the proposal for a meeting of official repre-
sentatives which was the precursor of the conferences at The
Hague. It is interesting to observe that while Lieber con-
sidered the unofficial meeting to be an alternative for the
official one, both have been realized, and in practice the work
of the unofficial members of the Institute of International
Law has made possible the success of the official conferences
at The Hague, by preparing their work beforehand and
agreeing upon conclusions which the official conferences
could accept.
The important characteristic which marshaled all Lieber's
forces for leadership of opinion and gave his work its chief
and permanent value was an elevation of spirit, a pervading
moral quality which was refined by adversity and trial
throughout the formative period of his life; and this quality
was well expressed by two maxims which he made his guides.
He says, in writing to Judge Thayer:
From early times I observed that in the French Revolution people had
always clamored for rights and never thought of duty; that more or less
this is the case in all periods of agitation, and almost universally so in our
own times and in our country right and duty; both together, and all
is well; right alone, despotism, - duty alone, slavery.
And, writing to Sumner, he says:
Let me now give you what I consider my chief law maxim: Nullum jus
sine officio, nullum officium sine jure, --- forgotten by despot and Rouge
(they want nothing but rights), forgotten by the slave who thinks he has
nothing but duty or obligation.
And this he condensed into the maxim: "Droit oblige."
The other maxim he kept displayed on the walls of his
lecture room:
“Patria Cara: Carior Libertas: Veritas
Carissima.” And these maxims he exemplified in his life
and in his service to mankind.
FRANCIS LIEBER
103
He was no dry student delving for knowledge he could not
use; but a living soul instinct with human sympathy and
love of liberty and justice, seizing eagerly the weapons of
learning to strike blows in the struggle for nobler and happier
life among men. He was no vapid theorist who argued
about it and about, but evermore came out by the same
door where in he went,' but a sagacious, practical man among
men, dealing with human nature as it was, with all its weak-
ness and folly and error, all its nobility and power; and seek-
ing to shape the human material upon which he wrought to
its best uses according to its real capacity and strength.
It was a wonderful career. It was a great thing to be the
author of the Instructions. It was a great thing to give the
impetus which produced the Institut de Droit International
and made possible the success of the Hague Conferences. It
was a great thing to be the man he was and to live a long life,
loving learning and law, and liberty, and country, and kind,
and blessed by consciousness of distinguished service to them
all. It stirs the imagination that the boy who lay wounded
on the battlefield of Namur for his country's sake and who
languished in prison for liberty's sake and who left his native
land that he might be free, should build his life into the
structure of American self-government and leave a name
honored by scholars and patriots the world over.
If our Society, at once national and international, were
about to choose a patron saint, and the roll were to be called,
my voice for one would answer “Francis Lieber.”
THE REAL MONROE DOCTRINE
PRESIDENTIAL ADDRESS AT THE EIGHTH ANNUAL MEETING
OF THE AMERICAN SOCIETY OF INTERNATIONAL LAW
WASHINGTON, APRIL 22, 1914
I
ASK your attention for a few minutes to some observa-
tions upon the Monroe Doctrine. If I am justified in
taking your time it will be not because I say anything novel,
but because there is occasion for restating well-settled mat-
ters which seem to have been overlooked in some recent
writings on the subject.
We are all familiar with President Monroe's famous
message of December 2, 1823:
The occasion has been judged proper for asserting as a principle in
which the rights and interests of the United States are involved, that the
American Continents, by the free and independent condition which they
have assumed and maintain, are henceforth not to be considered as
subjects for future colonization by any European Powers.
In the wars of the European Powers in matters relating to themselves
we have never taken any part, nor does it comport with our policy to do
so. It is only when our rights are invaded or seriously menaced that we
resent injuries or make preparation for our defense. With the move-
ments in this hemisphere we are of necessity more immediately connected
and by causes which must be obvious to all enlightened and impartial
observers.
We owe it, therefore, to candor, and to the amicable relations existing
between the United States and those Powers, to declare that we should
consider any attempt on their part to extend their system to any portion
of this hemisphere as dangerous to our peace and safety. With the exist-
ing colonies or dependencies of any European Power we have not inter-
fered and shall not interfere. But with the governments who have de-
clared their independence and maintained it, and whose independence we
have on great consideration and on just principles, acknowledged, we could
not view any interposition for the purpose of oppressing them, or control-
ling in any other manner, their destiny, by any European Power, in any
other light than as the manifestation of an unfriendly disposition toward
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the United States. In the war between these new governments and Spain
we declared our neutrality at the time of their recognition, and to this we
have adhered and shall continue to adhere, provided no change shall occur
which, in the judgment of the competent authorities of this government,
shall make a corresponding change on the part of the United States
indispensable to their security. ...
It is impossible that the allied Powers should extend their political
system to any portion of either continent without endangering our peace
and happiness; nor can any one believe that our southern brethren, if left
to themselves, would adopt it of their own accord. It is equally impossible,
therefore, that we should behold such interposition, in any form, with
indifference.
The occasion for these declarations is a familiar story -
the revolt of the Spanish provinces in America which Spain,
unaided, was plainly unable to reduce to their former condi-
tion of dependence; the reaction against liberalism in Europe
which followed the downfall of Napoleon and the restoration
of the Bourbons to the throne of France; the formation of
the Holy Alliance; the agreement of its members at the Con-
ferences of Aix-la-Chapelle and Laybach and Verona for the
insurance of monarchy against revolution; the restoration of
Ferdinand the Seventh to the throne of Spain by the armed
power of France pursuant to this agreement; the purpose of
the Alliance to follow the restoration of monarchy in Spain
by the restoration of that monarchy's control over its colonies
in the New World; the claims both of Russia and of Great
Britain to rights of colonization on the northwest coast; the
proposals of Mr. Canning to Richard Rush for a joint
declaration of principles by England and the United States
adverse to the interference of any other European Power in
the contest between Spain and her former colonies; the
serious question raised by this proposal as to the effect of a
joint declaration upon the American policy of avoiding
entangling alliances.
The form and phrasing of President Monroe's message
were adapted to meet these conditions. The statements
THE REAL MONROE DOCTRINE
107
made were intended to carry specific information to the
members of the Holy Alliance that an attempt by any of
them to coerce the new states of South America would be
not a simple expedition against weak and disunited colonies,
but the much more difficult and expensive task of dealing
with the formidable maritime power of the United States as
well as the opposition of England, and they were intended
to carry to Russia and incidentally to England the idea that
rights to territory in the New World must thenceforth rest
upon then existing titles, and that the United States would
dispute any attempt to create rights to territory by future
occupation.
It is undoubtedly true that the specific occasions for the
declaration of Monroe no longer exist. The Holy Alliance
long ago disappeared. The nations of Europe no longer
contemplate the vindication of monarchical principles in
the territory of the New World. France, the most active of
the Allies, is herself a republic. No nation longer asserts the
right of colonization in America. The general establishment
of diplomatic relations between the Powers of Europe and
the American republics, if not already universal, became so
when, pursuant to the formal assent of the Powers, all the
American republics were received into the Second Conference
at The Hague and joined in the conventions there made,
upon the footing of equal sovereignty, entitled to have their
territory and independence respected under that law of
nations which formerly existed for Europe alone.
The declaration, however, did more than deal with the
specific occasion which called it forth. It was intended to
declare a general principle for the future, and this is plain not
merely from the generality of the terms used but from the
discussions out of which they arose and from the understand-
ing of the men who took part in the making and of their
successors.
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INTERNATIONAL SUBJECTS
When Jefferson was consulted by President Monroe before
the message was sent he replied:
The question presented by the letters you have sent me is the most
momentous which has ever been offered to my contemplation since that
of independence. That made us a nation; this sets our compass and
points the course which we are to steer through the ocean of time opening
on us. And never could we embark upon it under circumstances more
auspicious. Our first and fundamental maxim should be, never to en-
tangle ourselves in the broils of Europe; our second, never to suffer Europe
to intermeddle with cis-atlantic affairs.
Three years later Daniel Webster declared that the doc-
trine involved the honor of the country. He said in the
House of Representatives:
I look upon it as a part of its treasures of reputation; and, for one, I
intend to guard it. I will neither help to erase it or tear it out; nor
shall it be, by any act of mine, blurred or blotted. It did honor to the
sagacity of the government, and will not diminish that honor.
Mr. Cleveland said in his message of December 17, 1895:
The doctrine upon which we stand is strong and sound because its en-
forcement is important to our peace and safety as a nation, and is essential
to the integrity of our free institutions and the tranquil maintenance of our
distinctive form of government. It was intended to apply to every stage of
our national life and cannot become obsolete while our republic endures.
As the particular occasions which called it forth have
slipped back into history, the declaration itself, instead of
being handed over to the historian, has grown continually a
more vital and insistent rule of conduct for each succeeding
generation of Americans. Never for a moment have the
responsible and instructed statesmen in charge of the foreign
affairs of the United States failed to consider themselves
bound to insist upon its policy. Never once has the public
opinion of the people of the United States failed to support
every just application of it as new occasion has arisen.
Almost every President and Secretary of State has restated
the doctrine with vigor and emphasis in the discussion of the
THE REAL MONROE DOCTRINE
109
diplomatic affairs of his day. The governments of Europe
have gradually come to realize that the existence of the
policy which Monroe declared is a stubborn and continuing
fact to be recognized in their controversies with American
countries. We have seen Spain, France, England, Germany,
with admirable good sense and good temper, explaining
beforehand to the United States that they intended no per-
manent occupation of territory, in the controversy with
Mexico forty years after the declaration, and in the contro-
versy with Venezuela eighty years after. In 1903 the Duke
of Devonshire declared “Great Britain accepts the Monroe
Doctrine unreservedly.” Mr. Hay coupled the Monroe
Doctrine and the Golden Rule as cardinal guides of American
diplomacy. Twice within very recent years the whole
treaty-making power of the United States has given its for-
mal approval to the policy by the reservations in the signa-
ture and in the ratification of the arbitration conventions of
The Hague Conferences, expressed in these words by the
Senate resolution agreeing to ratification of the convention
of 1907:
Nothing contained in this convention shall be so construed as to require
the United States of America to depart from its traditional policy of not
intruding upon, interfering with, or entangling itself in the political ques-
tions of policy or internal administration of any foreign state, nor shall
anything contained in the said convention be construed to imply a re-
linquishment by the United States of its traditional attitude towards
purely American questions.
It seems fair to assume that a policy with such a history
as this has some continuing and substantial reason under-
lying it; that it is not outworn or meaningless or a purely
formal relic of the past, and it seems worth while to consider
carefully what the doctrine is and what it is not.
No one ever pretended that Mr. Monroe was declaring a
rule of international law or that the doctrine which he de-
clared has become international law. It is a declaration of
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INTERNATIONAL SUBJECTS
the United States that certain acts would be injurious to the
peace and safety of the United States and that the United
States would regard them as unfriendly. The declaration
does not say what the course of the United States will be in
case such acts are done. That is left to be determined in
each particular instance. Mr. Calhoun said, in the Senate
debate on the Yucatan Bill, in 1848:
Whether you will resist or not and the measure of your resistance
whether it shall be by negotiation, remonstrance, or some intermediate
measure, or by a resort to arms; all this must be determined and decided
on the merits of the question itself. This is the only wise course.
There are cases of interposition where I would resort to the hazard of war
with all its calamities. Am I asked for one ? I will answer. I designate
the case of Cuba.
In particular instances indeed the course which the United
States would follow has been very distinctly declared, as
when Mr. Seward said, in 1865:
It has been the President's purpose that France should be respect-
fully informed upon two points; namely, first, that the United States
earnestly desire to continue and to cultivate sincere friendship with
France. Secondly, that this policy would be brought in imminent jeopardy
unless France could deem it consistent with her honor to desist from the
prosecution of armed intervention in Mexico to overthrow the domestic
republican government existing there and to establish upon its ruins the
foreign monarchy which has been attempted to be inaugurated in the
capital of that country.
So Secretary Buchanan said, in 1848:
The highest and first duty of every independent nation is to provide for
its own safety; and acting upon this principle, we should be compelled to
resist the acquisition of Cuba by any powerful maritime state, with all
means which Providence has placed at our command.
And Secretary Clayton said, in 1849:
The news of the cession of Cuba to any foreign Power would in the
United States be the instant signal for war. No foreign Power would
attempt to take it that did not expect a hostile collision with us as an
inevitable consequence.
THE REAL MONROE DOCTRINE
111
The doctrine is not international law but it rests upon the
right of self-protection and that right is recognized by inter-
national law. The right is a necessary corollary of independ-
ent sovereignty. It is well understood that the exercise of
the right of self-protection may and frequently does extend
in its effect beyond the limits of the territorial jurisdiction of
the state exercising it. The strongest example probably
would be the mobilization of an army by another Power
immediately across the frontier. Every act done by the
other Power may be within its own territory. Yet the coun-
try threatened by the state of facts is justified in protecting
itself by immediate war. The most common exercise of the
right of self-protection outside of a state's own territory and
in time of peace is the interposition of objection to the occu-
pation of territory, of points of strategic military or maritime
advantage, or to indirect accomplishment of this effect by
dynastic arrangement. For example, the objection of Eng-
land in 1911 to the occupation of a naval station by Germany
on the Atlantic coast of Morocco; the objection of the Euro-
pean Powers generally to the vast force of Russia extending
its territory to the Mediterranean; the revision of the Treaty
of San Stefano by the Treaty of Berlin; the establishment of
buffer states; the objection to the succession of a German
prince to the throne of Spain; the many forms of the Eastern
question; the centuries of struggle to preserve the balance of
power in Europe; all depend upon the very same principle
which underlies the Monroe Doctrine; that is to say, upon
the right of every sovereign state to protect itself by prevent-
ing a condition of affairs in which it will be too late to protect
itself. Of course each state must judge for itself when a
threatened act will create such a situation. If any state
objects to a threatened act and the reasonableness of its
objection is not assented to, the efficacy of the objection will
depend upon the power behind it.
.
:
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INTERNATIONAL SUBJECTS
It is doubtless true that in the adherence of the American
people to the original declaration there was a great element of
sentiment and of sympathy for the people of South America
who were struggling for freedom, and it has been a source of
great satisfaction to the United States that the course which
it took in 1823 concurrently with the action of Great Britain
played so great a part in assuring the right of self-govern-
ment to the countries of South America. Yet it is to be
observed that in reference to the South American govern-
ments, as in all other respects, the international right upon
which the declaration expressly rests is not sentiment or
sympathy or a claim to dictate what kind of government any
other country shall have, but the safety of the United States.
It is because the new governments cannot be overthrown by
the allied Powers “ without endangering our peace and
happiness ”, that “the United States cannot behold such
interposition in any form with indifference.”
We frequently see statements that the doctrine has been
changed or enlarged; that there is a new or different doctrine
since Monroe's time. They are mistaken. There has been
no change. One apparent extension of the statement of
Monroe was made by President Polk in his messages of 1845
and 1848, when he included the acquisition of territory by a
European Power through cession as dangerous to the safety
of the United States. It was really but stating a corollary to
the doctrine of 1823 and asserting the same right of self-
protection against the other American states as well as
against Europe.
This corollary has been so long and uniformly agreed to by
the Government and the people of the United States that it
may fairly be regarded as being now a part of the doctrine.
But, all assertions to the contrary notwithstanding, there
has been no other change or enlargement of the Monroe
Doctrine since it was first promulgated. It must be remem-
THE REAL MONROE DOCTRINE
113
bered that not everything said or written by Secretaries of
State or even by Presidents constitutes a national policy or
can enlarge or modify or diminish a national policy. It is
the substance of the thing to which the nation holds, and
that is and always has been that the safety of the United
States demands that American territory shall remain
American
The Monroe Doctrine does not assert or imply or involve
any right on the part of the United States to impair or con-
trol the independent sovereignty of any American state. In
the lives of nations as of individuals, there are many rights
unquestioned and universally conceded. The assertion of
any particular right must be considered, not as excluding all
others but as coincident with all others which are not incon-
sistent. The fundamental principle of international law is
the principle of independent sovereignty. Upon that all
other rules of international law rest. That is the chief and
necessary protection of the weak against the power of the
strong. Observance of that is the necessary condition to the
peace and order of the civilized world. By the declaration of
that principle the common judgment of civilization awards
to the smallest and weakest state the liberty to control its
own affairs without interference from any other Power,
however great.
The Monroe Doctrine does not infringe upon that right.
It asserts the right. The declaration of Monroe was that the
rights and interests of the United States were involved in
maintaining a condition, and the condition to be maintained
was the independence of all the American countries. It is
“the free and independent condition which they have as-
sumed and maintained ” which is declared to render them
not subject to future colonization. It is “ the governments
who have declared their independence and maintained it and
whose independence we have on great consideration and on
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just principles acknowledged ” that are not to be interfered
with. When Mr. Canning's proposals for a joint declaration
were under consideration by the Cabinet in the month before
the famous message was sent, John Quincy Adams, who
played the major part in forming the policy, declared the
basis of it in these words:
Considering the South Americans as independent nations, they them-
selves and no other nation had the right to dispose of their condition. We
have no right to dispose of them either alone or in conjunction with other
nations. Neither have any other nations the right of disposing of them
without their consent.
In the most critical and momentous application of the
doctrine Mr. Seward wrote to the French Minister:
France need not for a moment delay her prornised withdrawal of mili-
tary forces from Mexico and her putting the principle of non-intervention
into full and complete practice in regard to Mexico through any appre-
hension that the United States will prove unfaithful to the principles and
policy in that respect which on their behalf it has been my duty to main-
tain in this now very lengthened correspondence. The practice of this
government from its beginning is a guarantee to all nations of the respect
of the American people for the free sovereignty of the people in every
other state. We received the instruction from Washington. We applied
it sternly in our early intercourse even with France. The same principle
and practice have been uniformly inculcated by all our statesmen, inter-
preted by all our jurists, maintained by all our Congresses, and acquiesced
in without practical dissent on all occasions by the American people. It
is in reality the chief element of foreign intercourse in our history.
In his message to Congress of December 3, 1906, President
Roosevelt said:
In many parts of South America there has been much misunderstanding
of the attitude and purposes of the United States toward the other Ameri-
can republics. An idea had become prevalent that our assertion of the
Monroe Doctrine implied or carried with it an assumption of superiority
and of a right to exercise some kind of protectorate over the countries to
whose territory that doctrine applies. Nothing could be farther from the
truth.
He quoted the words of the Secretary of State then in
office to the recent Pan-American Conference at Rio Janeiro:
THE REAL MONROE DOCTRINE
115
We deem the independence and equal rights of the smallest and weak-
est member of the family of nations entitled to as much respect as those of
the greatest empire and we deem the observance of that respect the chief
guaranty of the weak against the oppression of the strong. We neither
claim nor desire any rights or privileges or powers that we do not freely
concede to every American republic.
And the President then proceeded to say of these statements:
They have my hearty approval, as I am sure they will have yours, and
I cannot be wrong in the conviction that they correctly represent the senti-
ments of the whole American people. I cannot better characterize the
true attitude of the United States in its assertion of the Monroe Doctrine
than in the words of the distinguished former Minister of Foreign Affairs
of Argentina, Doctor Drago ...“the traditional policy of the United
States without accentuating superiority or seeking preponderance con-
demned the oppression of the nations of this part of the world and the
control of their destinies by the great Powers of Europe."
Curiously enough, many incidents and consequences of
that independent condition itself which the United States
asserted in the Monroe Doctrine have been regarded in some
quarters as infringements upon independence resulting from
the Monroe Doctrine. Just as the personal rights of each
individual free citizen in the state are limited by the equal
rights of every other free individual in the same state, so the
sovereign rights of each independent state are limited by the
equal sovereign rights of every other independent state.
These limitations are not impairments of independent sov-
ereignty. They are the necessary conditions to the existence
of independent sovereignty. If the Monroe Doctrine had
never been declared or thought of, the sovereign rights of
each American republic would have been limited by the equal
sovereign rights of every other American republic, including
the United States. The United States would have had a
right to demand from every other American state observance
of treaty obligations and of the rules of international law.
It would have had the right to insist upon due protection for
the lives and property of its citizens within the territory of
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INTERNATIONAL SUBJECTS
every other American state, and upon the treatment of its
citizens in that territory according to the rules of interna-
tional law. The United States would have had the right as
against every other American state to object to acts which
the United States might deem injurious to its peace and
safety just as it had the right to object to such acts as against
any European Power and just as all European and American
Powers have the right to object to such acts as against each
other. All these rights which the United States would have
had as against other American states it has now. They are
not in the slightest degree affected by the Monroe Doctrine.
They exist now just as they would have existed if there had
been no Monroe Doctrine. They are neither greater nor less
because of that doctrine. They are not rights of superiority,
they are rights of equality. They are the rights which all
equal independent states have as against each other. And
they cover the whole range of peace and war.
It happens, however, that the United States is very much
bigger and more powerful than most of the other American
republics. And when a very great and powerful state makes
demands upon a very small and weak state it is difficult to
avoid a feeling that there is an assumption of superior au-
thority involved in the assertion of superior power, even
though the demand be based solely upon the right of equal
against equal. An examination of the various controversies
which the United States has had with other American Powers
will disclose the fact that in every case the rights asserted
were rights not of superiority but of equality. Of course it
cannot be claimed that great and powerful states shall forego
their just rights against smaller and less powerful states.
The responsibilities of sovereignty attach to the weak as well
as to the strong, and a claim to exemption from those respon-
sibilities would imply not equality but inferiority. The most
that can be said concerning a question between a powerful
THE REAL MONROE DOCTRINE
117
state and a weak one is that the great state ought to be espe-
cially considerate and gentle in the assertion and mainten-
ance of its position; ought always to base its acts not upon a
superiority of force, but upon reason and law; and ought to
assert no rights against a small state because of its weakness
which it would not assert against a great state notwithstand-
ing its power. But in all this the Monroe Doctrine is not
concerned at all.
The scope of the doctrine is strictly limited. It concerns
itself only with the occupation of territory in the New World
to the subversion or exclusion of a pre-existing American
government. It has not otherwise any relation to the affairs
of either American or European states. In good conduct or
bad, observance of rights or violations of them, agreement
or controversy, injury or reprisal, coercion or war, the United
States finds no warrant in the Monroe Doctrine for inter-
ference. So Secretary Cass wrote, in 1858:
With respect to the causes of war between Spain and Mexico, the
United States have no concern, and do not undertake to judge them. Nor
do they claim to interpose in any hostilities which may take place. Their
policy of observation and interference is limited to the permanent subju-
gation of any portion of the territory of Mexico, or of any other American
state, to any European Power whatever.
And Mr. Seward wrote, in 1861, concerning the allied opera-
tion against Mexico:
As the undersigned has heretofore had the honor to inform each of the
plenipotentiaries now addressed, the President does not feel at liberty to
question, and does not question, that the sovereigns represented have
undoubted right to decide for themselves the fact whether they have
sustained grievances, and to resort to war against Mexico for the redress
thereof, and have a right also to levy the war severally or jointly.
So when Germany, Great Britain and Italy united to compel
by naval force a response to their demands on the part of
Venezuela and the German Government advised the United
States that it proposed to take coercive measures to enforce
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ور
its claims for damages and for money against Venezuela,
adding, “We declare especially that under no circumstances
do we consider in our proceedings the acquisition or perma-
nent occupation of Venezuelan territory," Mr. Hay replied
that the Government of the United States, although it
regretted that European Powers should use force against Central and
South American countries, could not object to their taking steps to obtain
redress for injuries suffered by their subjects, provided that no acquisition
of territory was contemplated.
Quite independent of the Monroe Doctrine, however, there
is a rule of conduct among nations under which each nation
is deemed bound to render the good offices of friendship
to the others when they are in trouble. The rule has been
crystallized in the provisions of The Hague Convention
for the Pacific Settlement of International Disputes. Under
the head of “The Maintenance of General Peace” in that
convention substantially all the Powers of the world have
agreed:
With a view to obviating as far as possible recourse to force in the rela-
tions between states, the contracting Powers agree to use their best efforts
to ensure the pacific settlement of international differences.
In case of serious disagreement or dispute, before an appeal to arms, the
contracting Powers agree to have recourse, as far as circumstances allow,
to the good offices or mediation of one or more friendly Powers.
Independently of this recourse, the contracting Powers deem it expedi-
ent and desirable that one or more Powers, strangers to the dispute,
should, on their own initiative and as far as circumstances may allow, offer
their good offices or mediation to the states at variance. The exercise
of this right can never be regarded by either of the parties in dispute as an
unfriendly act.
The part of the mediator consists in reconciling the opposing claims and
appeasing the feelings of resentment which may have arisen between the
states at variance.
The United States has frequently performed this duty in
controversies between American republics among themselves
and between American republics and European states. So
in the controversy last referred to, the United States used
THE REAL MONROE DOCTRINE
119
its good offices to bring about a series of arbitrations which
superseded the resort to force determined upon by the allied
Powers against Venezuela. It did this upon the request of
Venezuela. It did it in the performance of no duty and the
exercise of no right whatever except the duty and the right
of friendship between equal sovereign states. The Monroe
Doctrine has nothing whatever to do with acts of this descrip-
tion; yet many times censorious critics, unfamiliar with the
facts and uninstructed in the customs and rules of action of
the international world, have accused the United States in
such cases of playing the rôle of school master, of assuming
the superiority of guardianship, of aiming at a protectorate.
As the Monroe Doctrine neither asserts nor involves any
right of control by the United States over any American
nation, it imposes upon the United States no duty towards
European Powers to exercise such a control. It does not call
upon the United States to collect debts or coerce conduct or
redress wrongs or revenge injuries. If matters ever come to a
point where in any American country the United States inter-
venes by force to prevent or end an occupation of territory
to the subversion or exclusion of an American government,
doubtless new rights and obligations will arise as a result of
the acts done in the course of the intervention. Unless such
a situation shall have arisen there can be no duty on the part
of the United States beyond the exercise of good offices as
between equal and independent nations.
There are indeed special reasons why the United States
should perform that duty of equal friendship to the full
limit of international custom and international ethics as
declared in The Hague Convention, whenever occasion arises
in controversy between American and European Powers.
There is a motive for that in the special sympathy and friend-
ship for the gradually developing republics of the south
which the American people have always felt since the days
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of Monroe and John Quincy Adams and Richard Rush and
Henry Clay. There is a motive in the strong desire of our
government that no controversy between a European and an
American state shall ever come to the point where the United
States may be obliged to assert by force the rule of national
safety declared by Monroe. And there is a motive in the
proper desire of the United States that no friendly nation of
Europe or America shall be injured or hindered in the prose-
cution of its rights in any way or to any extent that can pos-
sibly be avoided because that nation respects the rule of
safety which Mr. Monroe declared and we maintain. None
of these reasons for the exercise of the good offices of equality
justifies nor do all of them together justify the United States
in infringing upon the independence or ignoring the equal
rights of the smallest American state.
Nor has the United States ever in any instance during
the period of almost a century which has elapsed, made the
Monroe Doctrine or the motives which lead us to support it,
the ground or excuse for overstepping the limits which the
rights of equal sovereignty set between equal sovereign states.
Since the Monroe Doctrine is a declaration based upon
this
nation's right of self-protection, it cannot be transmuted
into a joint or common declaration by American states or any
number of them. If Chile or Argentina or Brazil were to
contribute the weight of its influence toward a similar end,
the right upon which that nation would rest its declaration
would be its own safety, not the safety of the United States.
Chile would declare what was necessary for the safety of
Chile. Argentina would declare what was necessary for the
safety of Argentina. Brazil, what was necessary for the
safety of Brazil. Each nation would act for itself and in its
own right and it would be impossible to go beyond that
except by more or less offensive and defensive alliances. Of
course such alliances are not to be considered.
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121
It is plain that the building of the Panama Canal greatly
accentuates the practical necessity of the Monroe Doctrine
as it applies to all the territory surrounding the Caribbean or
near the Bay of Panama. The plainest lessons of history and
the universal judgment of all responsible students of the sub-
ject concur in teaching that the potential command of the
route to and from the Canal must rest with the United States
and that the vital interests of the nation forbid that such
command shall pass into other hands. Certainly no nation
which has acquiesced in the British occupation of Egypt will
dispute this proposition. Undoubtedly as one passes to the
south and the distance from the Caribbean increases, the
necessity of maintaining the rule of Monroe becomes less
immediate and apparent. But who is competent to draw the
line? Who will say, “ To this point the rule of Monroe
should apply; beyond this point, it should not”? Who will
say that a new national force created beyond any line that he
can draw will stay beyond it and will not in the long course
of time extend itself indefinitely ?
The danger to be apprehended from the immediate proxim-
ity of hostile forces was not the sole consideration leading to
the declaration. The need to separate the influences deter-
mining the development and relation of states in the New
World from the influences operating in Europe played an
even greater part. The familiar paragraphs of Washington's
Farewell Address upon this subject were not rhetoric. They
were intensely practical rules of conduct for the future
guidance of the country.
Europe has a set of primary interests, which to us have none, or a very
remote, relation. Hence, she must be engaged in frequent controversies,
the causes of which are essentially foreign to our concerns. Hence, there-
fore, it must be unwise in us to implicate ourselves, by artificial ties, in
the ordinary vicissitudes of her politics, or the ordinary combinations
and collisions of her friendships or enmities. Our detached and distant
situation invites and enables us to pursue a different course.
५
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It was the same instinct which led Jefferson, in the letter
to Monroe already quoted, to say:
Our first and fundamental maxim should be, never to entangle our-
selves in the broils of Europe; our second, never to suffer Europe to
intermeddle with cis-atlantic affairs.
The concurrence of Washington and Hamilton and Jeffer-
son in the declaration of this principle of action entitles it to
great respect. They recalled the long period during which
every war waged in Europe between European Powers and
arising from European causes of quarrel was waged also in
the New World English and French and Spanish and
Dutch killed and harried each other in America, not because
of quarrels between the settlers in America but because of
quarrels between the European Powers having dominion
over them. Separation of influences as absolute and com-
plete as possible was the remedy which the wisest of Ameri-
cans agreed upon. It was one of the primary purposes of
Monroe's declaration to insist upon this separation, and to
accomplish it he drew the line at the water's edge. The prob-
lem of national protection in the distant future is one not to
be solved by the first impressions of the casual observer, but
only by profound study of the forces which, in the long life of
nations, work out results. In this case the results of such a
study by the best men of the formative period of the United
States are supported by the instincts of the American de-
mocracy holding steadily in one direction for almost a cen-
tury. The problem has not changed essentially. If the
declaration of Monroe was right when the message was sent,
it is right now. South America is no more distant today
than it was then. The tremendous armaments and inter-
national jealousies of Europe afford little assurance to those
who think we may now abandon the separatist policy of
Washington. That South American states have become too
strong for colonization or occupation is cause for satisfac-
THE REAL MONROE DOCTRINE
123
tion. That Europe has no purpose or wish to colonize Amer-
ican territory is most gratifying. These facts may make it
improbable that it will be necessary to apply the Monroe
Doctrine in the southern parts of South America; but they
furnish no reason whatever for retracting or denying or
abandoning a declaration of public policy, just and reason-
able when it was made, and which, if occasion for its ap-
plication shall arise in the future, will still be just and
reasonable.
A false conception of what the Monroe Doctrine is, of
what it demands and what it justifies, of its scope and of its
limits, has invaded the public press and affected public
opinion within the past few years. Grandiose schemes of
national expansion invoke the Monroe Doctrine. Interested
motives to compel Central or South American countries to
do or refrain from doing something by which individual
Americans may profit invoke the Monroe Doctrine. Clamors
for national glory from minds too shallow to grasp at the
same time a sense of national duty invoke the Monroe Doc-
trine. The intolerance which demands that control over the
conduct and the opinions of other peoples which is the essence
of tyranny invokes the Monroe Doctrine. Thoughtless
people who see no difference between lawful right and physi-
cal power assume that the Monroe Doctrine is a warrant for
interference in the internal affairs of all weaker nations in the
New World. Against this supposititious doctrine, many
protests both in the United States and in South America
have been made, and justly made. To the real Monroe
Doctrine these protests have no application.
CONFERENCE OF TEACHERS OF
INTERNATIONAL LAW
A conference of teachers of international law was held at the city of Washington,
April 23-25, 1914, under the auspices of the American Society of International Law,
“ in order to consider what measures, if any, could properly be taken to arouse a
greater interest in international law where taught in American institutions of learn-
ing; to secure its introduction in American institutions of learning where it is not
taught; to call attention to its importance to lawyers in the practice of their pro-
fession; and to suggest the advisability of a knowledge of its principles for admis-
sion to the bar; and to show, finally, the necessity of an understanding of the subject
by the public at large, which in a democracy such as ours determines in the ultimate
resort the foreign policy of the United States."
The Conference unanimously adopted a series of resolutions and these resolu-
tions, in so far as they are of a general nature, were approved on January 8, 1916, by
the Second Pan-American Scientific Congress, and form articles 23–32 of its Final
Act.
For the proceedings and the text of resolutions of the Teachers' Conference, see
Proceedings of the American Society of International Law (1914), pp. 250–324.
For the recommendations of the Second Pan-American Scientific Congress, see
its Final Act and interpretative commentary thereon by James Brown Scott (1916),
pp. 92–110.
As president of the Society, Mr. Root called the Conference together, and made
the following opening remarks:
ID
T gives me very great pleasure to welcome you to partici-
pation in this, the Conference of Teachers of International
Law and Related Subjects, held in connection with the
Eighth Annual Meeting of the American Society of Interna-
tional Law, and to express the grateful appreciation of the
officers and members of the Society to the instructors in
international law who have left their customary duties, to
come here for the purpose of taking part in this conference.
The invitation which led to this meeting had its origin in a
resolution which was offered by that honored and admired
leader in American education, Mr. Andrew D. White, at a
meeting of the Trustees of the Carnegie Endowment for In-
ternational Peace. One of the divisions of work established
125
126
INTERNATIONAL SUBJECTS
under that trust is the Division of International Law, of
which Dr. James Brown Scott is the head; and Mr. White,
responding to the double impulse of his old enthusiasm as a
teacher and organizer of education and as a diplomatist, as
the representative of his country at the court of Germany,
and as the first delegate of his country to the First Hague
Conference, offered this resolution:
Resolved: That the Executive Committee be directed to propose and
carry out, subject to the approval of this Board, a plan for the propagation,
development, maintenance and increase of sound, progressive and fruitful
ideas on the subject of arbitration and international law and history as
connected with arbitration, especially through addresses or courses of
lectures delivered before the leading universities, colleges and law schools
of the United States, and to report on the same at the next regular meeting
of the Board, or, should the Committee think best, at a special meeting to
be called for that purpose.
In taking the first steps in compliance with this resolution,
the Executive Committee found it desirable to ascertain, as a
basis of action, what was already being done in the United
States along the lines indicated by the resolution; and, ac-
cordingly, an inquiry was set on foot and prosecuted, in which
was developed the state of education upon this subject in all
the leading colleges and universities and law schools of the
country, and a very full report was made upon that subject.
The consideration of the facts developed by that report led
to the conclusion that the program, the method of procedure,
the scope of enterprise and activity in the spirit of Mr.
White's resolution, were something that no individual and no
committee organized for any other purpose, as was the Exec-
utive Committee of the Peace Endowment, could properly
handle, could adequately deal with; and, accordingly, the
suggestion was made that the American Society of Interna-
tional Law, which deals specifically with the subject-matter
of the resolution, should take it up, and that the men who
know best what is needed and how that shall be done and can
CONFERENCE OF TEACHERS
127
be done, should come together and confer upon the subject.
So you see that the initial impulse which brings you here is a
source which must be respected by every American educator,
and has a purpose which is certified to by the highest ability
and the broadest experience.
I will detain you from the practical work which lies before
you in organizing the conference, by only a single suggestion.
The putting of instruction in international law in American
educational institutions on a broader basis, giving it a wider
scope and greater efficiency, is not a mere matter of book
learning. It is not a mere matter of science. It is a matter of
patriotic duty.
More and more, as the years follow one another with the
swiftness of our modern life, democracy is coming to its own.
More and more the people, the men on the farms and in the
shops, the men with the pick and shovel in their hands, are
assuming the direction of the operations of government, both
internal and external. More and more they are directly
responsible for the operations of government. Presidents and
Congresses more and more look for immediate response from
constituencies upon the most difficult and intricate questions
in the foreign relations of the country, questions the right
solution of which requires broad knowledge, which cannot be
solved by the impressions of the moment, which cannot
be solved by emotional response to oratory.
I think no one can study the movement of the times with-
out realizing that the democracy of the world — for it is not
alone in this country is realizing its rights in advance of its
realization of its duties. And that way lies disaster. That
way lies hideous wrong. That way lies the exercise of the
mighty powers of modern democracies to destroy themselves,
to destroy the vitality of the principles upon which they de-
pend. And there is no duty more incumbent today upon the
men whose good fortune has made it possible for them to
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INTERNATIONAL SUBJECTS
acquire a broader knowledge upon the subjects with which
democracy deals, than to become themselves leaders of
opinion and teachers of their people. Unless the popular will
responds to the instructed and competent leadership of
opinion upon the vital questions of our foreign relations, the
worst impulses of democracy will control. At the bottom of
wise and just action lies an understanding of national rights
and national duties. Half the wars of history have come
because of mistaken opinions as to national rights and
national obligations, have come from the unthinking assump-
tion that all the right is on the side of one's own country, all
the duty on the side of some other country. Now I say the
thing most necessary for the good of our country in the
foreign relations which are growing every year more and more
intricate and critical, is that there shall be intelligent leader-
ship of opinion as to national rights and national obligations;
and nobody can bring that about as the educators of America
can bring it about. It is in the hope that you will be able to
organize, to give direction and wise guidance to a systematic
movement to accomplish this good service for our country,
that I take the deepest interest in this conference, and bid
you God-speed in your labors.
THE HAGUE PEACE CONFERENCES
ADDRESS IN OPENING THE NATIONAL ARBITRATION AND
PEACE CONGRESS, IN THE CITY OF NEW YORK,
APRIL 15, 1907
In submitting the Hague Conventions of 1907 to the Senate, Mr. Root,
as Secretary of State, said:
Let me go beyond the limits of the customary formal letter of
transmittal and say that I think the work of the Second Hague
Conference, which is mainly embodied in these Conventions, presents
the greatest advance ever made at any single time toward the reason-
able and peaceful regulation of international conduct, unless it be
the advance made at The Hague Conference of 1899.
The most valuable result of the Conference of 1899 was that it
made the work of the Conference of 1907 possible. The achievements
of the Conferences justify the belief that the world has entered upon
an orderly process through which, step by step, in successive Con-
ferences, each taking the work of its predecessor as its point of
departure, there may be continual progress toward making the
practice of civilized nations conform to their peaceful professions.
At a later date, Mr. Root furnished a prefatory note to Scott's Texts of
the Peace Conferences at the Hague, from which the following paragraph
is quoted as further illustrating his views as to the importance of the
international conference and the process by which it accomplishes its
results:
The question about each international conference is not merely
what it has accomplished, but also what it has begun, and what it
has moved forward. Not only the conventions signed and ratified,
but the steps taken toward conclusions which may not reach practical
and effective form for many years to come, are of value. Some of
the resolutions adopted by the last conference do not seem to amount
to very much by themselves, but each one marks on some line of
progress the farthest point to which the world is yet willing to go.
They are like cable ends buoyed in mid-ocean, to be picked up here-
after by some other steamer, spliced, and continued to shore. The
greater the reform proposed, the longer must be the process required
to bring many nations differing widely in their laws, customs, tradi-
tions, interests, prejudices, into agreement. Each necessary step in
the process is as useful as the final act which crowns the work and is
received with public celebration.
129
130
INTERNATIONAL SUBJECTS
- In order fully to appreciate Mr. Root's deep interest in The Hague Con-
ferences and the importance he attached to them as an agency in the devel-
opment of international law and in reaching agreements upon international
conduct, the reader is referred to Mr. Root's instructions, as Secretary
of State, to the American delegates to the Second Hague Peace Conference.
These instructions will be found in the collection of state papers in this
series.
N every country which has reached a high stage of civi-
lization may be seen the working of two distinct and ap-
parently inconsistent motives or principles of national
conduct. On the one hand, there is the narrowly and imme-
diately utilitarian motive, and there is the competitive
attitude fashioned upon the habits of self-preservation and
self-assertion enjoined by the necessities of the struggle for
existence. With this motive each country pursues specific
national advantages meeting in a hard, dry, business-like
way, without sympathy or sentiment, the facts of a world in
which there is much selfishness and greed, in which every
nation is primarily looking out for itself, and in which there
is ordinarily some aggressor ready to take advantage of the
over-trusting and defenseless.
On the other hand, there is the ethical, altruistic, humane
impulse that presses forward constantly toward ideals. Its
possessors, loving liberty and justice and peace, long to
make all men free and safe and secure in their rights; their
eyes are fixed upon the ultimate goal toward which civiliza-
tion tends; they are striving that better things shall replace
the cynicism and selfishness and cruelty which have always
so widely characterized mankind; they assert principles and
set up standards of action, which they call upon mankind to
adopt, and mankind too often gives theoretical assent but
denies practical conformity.
In
every
man's nature there are manifestations or traces of
each of these impulses; and in every nation there are many
citizens in whom one, and many in whom the other, impulse
THE HAGUE PEACE CONFERENCES
131
strongly predominates. As circumstances bring one class of
motives or another into control of national conduct in dif-
ferent fields of national action, strangely variant and incon-
sistent national action results. The same nation may be
seen hard and practical, and at another time, or perhaps in
another field at the same time, exhibiting the highest degree
of unselfishness and humanity. Under the predominance of
one motivé, national power has been built up; administra-
tion has been made effective; commerce has been extended;
material wealth, the matrix of civilization, has been created
and protected; the citizens of each country have been se-
cured against aggression from without; and, in the slow
process of centuries, the code of practical rules convenient
and necessary to the peaceable intercourse of nations has
been elaborated. Under the predominance of the other
motive, the conception of individual charity and humanity,
which found its highest expression in the Christian revelation,
has slowly impressed itself upon the conception of national
duty and responsibility. In its development the idea of
national conscience and national ethics has been forced into
the international system, which formerly acknowledged the
undisputed sway of selfishness and cruelty, long condemned
as immoral in the relations between individuals.
It is natural that the hard and practical motive shall be
uppermost in the men engaged in the conduct of government;
they are endowed with limited and definite powers and
charged with specific trusts for the benefit of their own
people; their duties are to protect and advance the interests
of their own country, and those duties relate, in the main, to
the material interest of their countrymen; their specific
powers are given to them for that specific purpose; they
have no warrant of attorney to express or give effect to the
benevolent or humanitarian impulses of their constituents;
under constitutional government, as a rule, such expression
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is not committed by law to public officers, but is reserved to
the people. In the discharge of their international duties
governmental officers have to deal with a world of selfish
competition and ever-present possibility of aggression and
injury, which compel them to think first and chiefly of the
interest of their own country as a lawyer argues the case of
his own client. They are constrained by the rules of conduct
between nations which the experience of centuries has shown
to be necessary to the peace of the world. Among the first of
these is, that the government of each nation shall attend to
its own business and respect the sovereignty and refrain
from interfering with the internal affairs of every other
nation. This rule is the chief protection of the liberty of
small and weak nations against the aggression of the strong.
To break it down whenever the officers of one government
disapprove the conduct of another government within its
own jurisdiction, would be to break down the barriers which
civilization has erected for the protection of the weak, with
results as fatal as if the executive were allowed to make
orders and the judge to issue decrees according to their own
kindly impulses, without regard to the limitations of law.
It is natural that the altruistic and humanitarian view,
broader and less immediately practical, shall be taken by
students and thinkers, by teachers and philosophers, by men
who, not burdened by the necessity of putting theories into
practice, are at liberty to look upon the world as it ought to
be and to urge mankind on toward acceptance of their ideals.
These men are masters of their own power; they have a war-
rant from all whom their eloquence, their persuasion, their
reasoning, or the inherent soundness of their ideas bring into
agreement with them, to press their views upon the world
and insist upon conformity. In every civilized land their
numbers, their power, and their following have increased,
most of all in lands where freedom is most perfect and justice
THE HAGUE PEACE CONFERENCES
133
.
most pure, until the voices of the few visionaries, long ago
crying in the wilderness, have become the sound of a multi-
tude; and a public opinion of the world, insisting upon right-
eousness and peace among nations as among individuals, is
beginning to be perceived and to affect the national purposes
which governments represent.
It is inevitable that the men who are directed by these two
widely differing impulses should sometimes be impatient of
each other. The humanitarian is repelled by the hardness of
the practical man, who seems unsympathetic in his failure to
act upon views that are certainly sound in the abstract and
which ought to be accepted by all the world. The practical
administrator is distressed by the urgency of the theorist,
who, ignorant of real conditions, urges him to a course of
action which he knows cannot possibly be taken, or, if it
were taken under existing conditions, would result only in
evil. One tends to think lightly of the other as an impracti-
cable theorist, and in return is condemned by the other as
unfeeling and cynical. Both judgments are probably often,
to some extent, true, but both are generally, and to a
much greater extent, wrong. Each class plays its necessary
part in the great work of advancing civilization. It can-
not be doubted that the supreme results for humanity are
secured by the combination, the union, the blending of the
two impulses, to the end that national selfishness may be most
broadly intelligent and humanitarian idealism most effec-
tively practical.
Your invitation to take part in the opening of this Peace
Congress has come to me as an occasion to declare the alliance
and sympathy of the American Government with that other
power — the sentiment of humanity – which in all lands,
and most strongly in our generation, without fleets or armies
or titles or dignities or compulsion of force, is leading man-
kind continually to a nobler life. The American people are
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practical, material, strenuous in business, eager for wealth,
energetic in production and venturous in commerce, insistent
upon their rights, proud of their country, jealous of its power
and its prestige; but there is a strain of idealism in the
American nature which saves our nation from the grossness
of sordid materialism and makes it responsive to every appeal
in behalf of liberty and righteousness, of peace with justice,
and of human brotherhood the world over. No American
Government could truly represent its people if it did not
sympathize heartily with the purposes which this Congress
meets to promote, and the American Government of today
does sympathize heartily with those purposes. In behalf
of the Government I give you the kindly and appreciative
greeting of the people of the United States and welcome you
as spiritual kindred of those Americans of great heart and
clear intelligence who in times past, striving for ordered lib-
erty and the peace of justice in this land, have conferred
inestimable benefits upon all mankind, and whose memory
and example are our most precious possessions.
He is mistaken who depreciates the value of such a meet-
ing as this, or regards its discussions as merely academic,
because its members have not the power themselves to give
effect to their resolutions. The open, public declaration of a
principle in such a way as to carry evidence that it has the
support of a great body of men entitled to respect has a won-
derfully compelling effect upon mankind. The adoption of a
new standard of human action is never the result of force or
the threat of force; it is always the result of a moral process,
and to the initiation and continuance of that process public
assertion and advocacy of the principle are essential. When
that process has been worked out and the multitude of men
whom governments represent have reached the point of
genuine and not perfunctory acceptance of the new standard,
governments conform themselves to it.
THE HAGUE PEACE CONFERENCES
135
It is a common saying that the world is ruled by force
that the ultimate sanction for the rules of right conduct be-
tween nations is the possibility of war. That is less than a
half truth. There was a time when the official intercourse
between nations which we call diplomacy consisted chiefly of
bargaining and largely of cheating in the bargain. Diplo-
macy now consists chiefly in making national conduct con-
form or appear to conform to the rules which codify, embody,
and apply certain moral standards evolved and accepted in
the slow development of civilization. The continual and
unceasing process of diplomatic intercourse by which these
standards are pressed upon the government of every nation,
backed by the tremendous power of the opinion of the civi-
lized world, enforced by the desire for the good opinion and
apprehension of the disfavor of mankind, forms a strong
external restraint upon national conduct; and these stand-
ards have been created by the evolution of moral as opposed
to physical forces.
The value of declaring a principle may be illustrated by the
effect of the arbitration convention agreed upon in the Inter-
national Peace Conference at The Hague in 1899. That
convention did little more than to declare principles; it pro-
vided machinery by which there might be arbitration, but it
bound nobody to arbitrate, or to mediate, or to accept media-
tion. The machinery provided has been but little used; the
arbitrations at The Hague have been few and not of the first
order of importance; yet no one can for a moment question
the enormous impetus given to the principle of arbitration of
international controversies in lieu of war by that open and
public declaration that such controversies ought to be
arbitrated.
The thoughts of all men who hope for the peace of the
world are now turned toward the Second Peace Conference
so soon to meet at The Hague. It is cheering to note the
.
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INTERNATIONAL SUBJECTS
difference between the attitude of the world toward this Con-
ference about to meet and the way in which the world looked
upon the First Conference at The Hague eight years ago.
The generous impulse and noble sentiment of the Emperor of
Russia which dictated the call for that Conference, sup-
ported by his great power and commanding position, com-
pelled respect, or the appearance of respect, from all the
great Powers; yet it is safe to say that the prevailing senti-
ment among the Powers as to the practical value of the
Conference was one of polite incredulity, and that the dele-
gates whom he had called together met amid an almost
universal belief that nothing would or could be accomplished.
The primary object of the call for the First Conference — the
accomplishment of the great design which Henry IV of
France conceived three centuries ago for the limitation of
armaments in Europe — failed for the time; yet the Con-
ference accomplished other things of the highest value to
humanity, and it demonstrated for the first time in the
world's history the potent and epoch-making fact that a con-
gress of the world's powers convened, not to deal with some
concrete question demanding immediate solution, but con-
vened to consider and discuss the application of the general
and fundamental principles of justice and humanity under all
circumstances and to all international questions, can be
made a practical and effective agency in the government of
the world; it developed a new method and a new power for
the betterment of international conduct, far superior to the
ordinary rules of diplomatic intercourse, far broader in its
scope, far nobler in its purpose. Upon the eve of the Second
Conference, whose very possibility demonstrates the success
and approves the wisdom of the first, it seems to me that all
men who love their fellow-men and who hope for the rule of
righteousness and peace on earth should feel a deep sentiment
of gratitude toward that sovereign whose noble character led
THE HAGUE PEACE CONFERENCES
137
him to call together the First Conference and an equally deep
sympathy with him in the hard and difficult task in which he
is now engaged of establishing constitutional government in
his own dominions.
The Second Conference is about to meet amid universal
recognition that it is of practical significance. It commands
respect; its possibilities are the object of solicitude; the
resolutions which it may reach are anticipated as of probable
potency in the affairs of nations; it is not regarded as an oc-
casion for mere academic discussion, but it finds its place
among the agencies by which the world is governed. I cannot
doubt that it will accomplish much for the benefit of man-
kind; that in many things it will bring the practice of nations
into closer conformity with those great principles of conduct
to which nations have accorded such ready assent in theory
but such reluctant compliance when their particular interests
are involved.
The First Conference relegated to a future conference the
consideration of three broad, general questions affecting the
conduct of nations toward each other: first, the rights and
duties of neutrals; second, the inviolability of private prop-
erty in naval warfare; and, third, the bombardment of towns,
villages, and ports by a naval force. It is understood that all
these subjects shall be considered at the Second Conference.
The First Conference also adopted two resolutions relating
to naval and military armament. The first was:
The Conference is of opinion that the restriction of military charges,
which are at present a heavy burden on the world, is extremely desirable
for the increase of the material and moral welfare of mankind.
The second was:
The Conference expresses the wish that the governments, taking into
consideration the proposals made at the Conference, may examine the
possibility of an agreement as to the limitation of armed forces by land and
sea and of war budgets.
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INTERNATIONAL SUBJECTS
The Government of the United States has been of the
opinion that the subject-matter of these resolutions ought to
be further considered and discussed in the Second Confer-
ence; that the subject is in the nature of unfinished business
and cannot be ignored, but must be dealt with; that there
ought to be at least an earnest effort to reach, or to make
progress toward reaching, some agreement under which the
enormous expenditure of money and the enormous with-
drawal of men from productive industry for warlike purposes
may be reduced or arrested or retarded. We have not been
unmindful of the fact that the question is one which primarily
and in its present stage concerns Europe rather than America;
that the conditions which have led to the great armaments of
the present day are mainly European conditions, and that it
would ill become us to be forward or dogmatic in a matter
which is so much more vital to the nations of Europe than to
ourselves. It sometimes happens, however, that a state
having little or no special material interest in a proposal can,
for that very reason, advance the proposal with the more
advantage and the less prejudice. The American Govern-
ment accordingly, at an early stage of the discussion regard-
ing the program, reserved the right to present this subject for
the consideration of the Conference. Several European
Powers have also given notice of their intention to present
the subject. It may be that the discussion will not bring the
Second Conference to any definite and practical conclusion;
certainly no such conclusion can be effective unless it meet
with practically universal assent, for there can be no effective
agreement which binds some of the Great Powers and leaves
others free. There are serious difficulties in formulating any
definite proposal which would not be objectionable to some of
the Powers, and upon the question whether any specific pro-
posal is unfair and injurious to its interests each Power must
be, and is entitled to be, its own judge.
THE HAGUE PEACE CONFERENCES
139
Nevertheless, the effort can be made; it may fail in this
Conference, as it failed in the first, but even if it fails one
more step will have been taken toward ultimate success.
Long-continued and persistent effort is always necessary to
bring mankind into conformity with great ideals; every
great advance that civilization has made on its road from
savagery has been upon stepping-stones of failure, and a good
fight bravely lost for a sound principle is always a victory.
The Government of the United States has also considered
that the Second Hague Conference might well agree in put-
ting some limitation upon the use of force for the collection
of ordinary contract debts due by one government to the
citizens of another.
It has long been the established policy of the United States
not to use its army and navy for the collection of such
debts. We have not considered the use of force for such a
purpose consistent with that respect for the independent
sovereignty of other members of the family of nations which
is the most important principle of international law and the
chief protection of weak nations against oppression. It
seems to us that the practice is injurious in its general effect
upon relations of nations and upon the welfare of weak and
disordered states, whose development ought to be en-
couraged in the interests of civilization, and that it offers
frequent temptation to bullying and oppression and to un-
necessary and unjustifiable warfare. It may be that the
non-payment of public debts may be accompanied by such
circumstances of fraud and wrongdoing or violation of
treaties as to justify the use of force as a last resort; but we
hope to see an international consideration of the subject
which shall discriminate between such cases and the simple
non-performance of a contract with a private person, and to
see a resolution in favor of reliance exclusively upon peace-
ful means in cases of the latter class. It may well be that
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the principle of arbitration can be so extended in its appli-
cation that the class of adventurers who have long been
in the habit of trading upon the necessities of weak and
distressed governments may be required to submit their
often exorbitant and unconscionable demands to an impar-
tial tribunal, before which both parties may be heard both
as to the validity and the amount of their claims and the
time and manner of payment to which they are entitled.
The record of the cases which have been submitted to arbi-
tration during recent years shows that the total awards of
the arbitral tribunals have amounted to a very small per-
centage of the demands submitted. It is difficult to resist
the inference that the claims of private citizens who seek the
good offices of their own governments to obtain payment
from other countries generally need investigation by fair tri-
bunals rather than immediate and peremptory enforcement.
In the general field of arbitration we are surely justified in
hoping for a substantial advance both as to scope and effec-
tiveness. It has seemed to me that the great obstacle to the
universal adoption of arbitration is not the unwillingness of
civilized nations to submit their disputes to the decision of an
impartial tribunal; it is rather an apprehension that the
tribunal selected will not be impartial. In a dispatch to Sir
Julian Pauncefote dated March 5, 1896, Lord Salisbury
stated the difficulty. He said that --
If the matter in controversy is important, so that defeat is a serious
blow to the credit or the power of the litigant who is worsted, that interest
becomes a more or less keen partisanship. According to their sympathies,
men wish for the victory of one side or another. Such conflicting sym-
pathies interfere most formidably with the choice of an impartial arbitra-
tor. It would be too invidious to specify the various forms of bias by
which, in any important controversy between two great powers, the other
members of the commonwealth of nations are visibly affected. In the
existing condition of international sentiment each great power could point
to nations whose admission to any jury by whom its interests were to be
tried it would be bound to challenge; and in a litigation between two great
THE HAGUE PEACE CONFERENCES
141
powers the rival challenges would pretty well exhaust the catalogue of the
nations from which competent and suitable arbiters could be drawn. It
would be easy, but scarcely decorous, to illustrate this statement by ex-
amples. They will occur to anyone's mind who attempts to construct a
panel of nations capable of providing competent arbitrators, and will
consider how many of them would command equal confidence from any
two litigating powers.
This is the difficulty which stands in the way of unrestricted arbitration.
By whatever plan the tribunal is selected, the end of it must be that issues
in which the litigant states are most deeply interested will be decided by
the vote of one man, and that man a foreigner. He has no jury to find his
facts; he has no court of appeal to correct his law; and he is sure to be
credited, justly or not, with a leaning to one litigant or the other.
The feeling which Lord Salisbury so well expressed is, I
think, the great stumbling-block in the way of arbitration.
The essential fact which supports that feeling is that arbi-
trators too often act diplomatically rather than judicially;
they consider themselves as belonging to diplomacy rather
than to jurisprudence; they measure their responsibility and
their duty by the traditions, the sentiments, and the sense of
honorable obligation which have grown up in centuries of
diplomatic intercourse, rather than by the traditions, the
sentiments, and the sense of honorable obligation which
characterize the judicial departments of civilized nations.
Instead of the sense of responsibility for impartial judgment
which weighs upon the judicial officers of every civilized
country, and which is enforced by the honor and self-respect
of every upright judge, an international arbitration is often
regarded as an occasion for diplomatic adjustment. Grant-
ing that the diplomats who are engaged in an arbitration
have the purest motives; that they act in accordance with
the policy they deem to be best for the nations concerned in
the controversy; assuming that they thrust aside entirely
in their consideration any interests which their own countries
may have in the controversy or in securing the favor or avert-
ing the displeasure of the parties before them — nevertheless
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INTERNATIONAL SUBJECTS
it remains that in such an arbitration the litigant nations find
that questions of policy, and not simple questions of fact and
law, are submitted to alien determination, and an appreciable
part of that sovereignty which it is the function of every
nation to exercise for itself in determining its own policy is
transferred to the arbitrators.
An illustration of this view is to be found in the fact that
one of the features of the extraordinary advance made by the
nations of South America in the arts of peace is the develop-
ment of arbitration for the settlement of disputes, and espe-
cially boundary disputes, to a greater degree than in any
other part of the world. This has been facilitated by the
almost complete detachment of South American politics from
the national politics of Europe; so that it has been easy for the
South American states to find arbitrators who neither knew
nor cared for any political question in South America, and
who, therefore, have been able to determine the questions
before them with sole reference to the merits of the question,
as a trained and upright judge decides a case submitted to
his court.
What we need for the further development of arbitration
is the substitution of judicial action for diplomatic action,
the substitution of judicial sense of responsibility for diplo-
matic sense of responsibility. We need for arbitrators, not
distinguished public men concerned in all the international
questions of the day, but judges who will be interested only
in the question appearing upon the record before them.
Plainly, this end is to be attained by the establishment of a
court of permanent judges, who will have no other occupation
and no other interest but the exercise of the judicial faculty
under the sanction of that high sense of responsibility which
has made the courts of justice in the civilized nations of the
world the exponents of all that is best and noblest in modern
civilization.
THE HAGUE PEACE CONFERENCES
143
Let me add a few words of warning concerning your anti-
cipations of what the Second Peace Conference is to do. Do
not expect too much from it.
It is an essential characteristic of such a conference that it
shall deal, not with matters upon which the nations differ, but
with matters upon which the nations agree. Immaterial
differences may be smoothed away; misunderstandings may
be explained; consideration and discussion along lines that
do not run counter to any immediate and specific interest
may work out methods of applying general principles in such
a way as to prevent future differences; progress may be
made toward agreement upon matters which are not yet
ripe for complete adjustment; but the moment an attempt is
made to give such a conference any coercive effect, the mo-
ment any number of nations endeavor to use the conference
for the purpose of compelling any other nation to do what it
deems inconsistent with its interests, that moment the
conference fails.
Such a conference is an agency of peace; not the peace of
conquest, but the peace of agreement; not enforced agree-
ment, but willing and cheerful agreement. So far as the
nations can go together in such an agreement the confer-
ence can go, and no farther.
Many lovers of their kind, certain that the principles
which they see so clearly ought to be accepted of all men, are
unmindful of the many differences which divide the nations
in the competition for trade and wealth, for honor and pres-
tige; unmindful that the selfishness and greed and willing-
ness to do injustice which have marked all human history
still exist in the world; unmindful that because of these the
instinct of self-protection engenders distrust and suspicion
among the nations; and they will be sadly disappointed
because The Hague Conference of 1907 does not realize their
dreams and usher in the parliament of man- the federation
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INTERNATIONAL SUBJECTS
of the world. But let them take heart. A forward step will
be taken; an advance will be made toward the reign of peace
and justice and righteousness among men, and that advance
will go just so far as the character of the great mass of civi-
lized men permits. There lies the true measure of possibility
and the true origin of reforming force. Arbitrations and
mediations, treaties and conventions, peace resolutions,
declarations of principle, speeches and writings, are as naught
unless they truly represent and find a response in the hearts
and minds of the multitude of the men who make up the
nations of the earth, whose desires and impulses determine
the issues of peace and war. The end toward which this
assemblage strives — the peace of the world — will be
attained just as rapidly as the millions of the earth's peoples
learn to love peace and abhor war; to love justice and hate
wrongdoing; to be considerate in judgment and kindly in
feeling toward aliens as toward their own friends and neigh-
bors; and to desire that their own countries shall regard the
rights of others rather than be grasping and overreaching.
The path to universal peace is not through reason or intellec-
tual appreciation, but through the development of peace-
loving and peace-keeping character among men; and that
this development, slow though it be as measured by our
short lives, is proceeding with steady and unremitting ad-
vance from generation to generation no student of history
can question. The greatest benefit of the Peace Conference
of 1907 will be, as was that of the Peace Conference of 1899,
in the fact of the conference itself; in its powerful influence
moulding the characters of men; in the spectacle of all the
great powers of the earth meeting in the name of peace, and
exalting, as worthy of honor and desire, national self-control
and considerate judgment and willingness to do justice.
THE IMPORTANCE OF JUDICIAL
SETTLEMENT
OPENING ADDRESS AT THE INTERNATIONAL CONFERENCE
OF THE AMERICAN SOCIETY FOR JUDICIAL SETTLEMENT
OF INTERNATIONAL DISPUTES, WASHINGTON, D.C.
DECEMBER 15, 1910
In introducing the speaker the presiding officer, James Brown Scott, said:
For centuries it was the plan of the philosopher and the hope of the philan-
thropist that some means might be found by which international conflicts should be
settled peacefully without a resort to arms, and the dreamers of dreams, phil-
osophers and philanthropists, proposed that the questions at issue between nations
should be settled either in conference, in diplomatic assemblies or by temporary
tribunals of arbitration created for the express purpose. That which the dreamers
of dreams have dreamed, and the philosophers have planned, that which the phil-
anthropists saw before them as if in a vision, took definite form and shape in the
year 1907, when our accomplished Secretary of State, the Honorable Elihu Root,
instructed the American delegation to the Second Hague Peace Conference to pro-
pose a permanent court to be composed of judges who should act under a sense of
judicial responsibility, and which court should represent the various judicial systems
of the world. Pursuant to these instructions the delegation, under the leadership of
the Honorable Joseph H. Choate, introduced such a proposition, and after weeks
of discussion and debate the Conference adopted a draft convention consisting of
thirty-five articles for the organization, the jurisdiction and the procedure of a
permanent court of arbitral justice, leaving it, however, to the nations to constitute
the court, through diplomatic channels, when an agreement should be reached upon
the appointment of the judges.
E all of us agree, and a very large part of the world
agrees, that there ought to be an end to war, that it is
brutal, wasteful and stupid. We have been talking about it
for a great many years. The volume of sound has swelled
and grown into a great chorus of universal acclaim for the
principles of peace with justice.
But all great movements have a definite development.
They pass from stage to stage. The declaration of principles
in the beginning is but the first step, and the method of de-
velopment is from the general to the particular, from the
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146
INTERNATIONAL SUBJECTS
theoretical to the practical, from the proposal to the accom-
plishment.
Now, the movement for peace, for the settlement of the
disputes of mankind by peaceful means, is, it seems to me,
passing from one stage to another in these wonderful years
in which we live. Having accumulated enough momentum,
by means of the missionary work that has been done, by
means of the propaganda which has been prosecuted, we are
beginning now to pass into the stage of careful, thoughtful,
definite, certain inquiry into the specific causes of war and
the specific remedies to be applied. So only can progress be
made towards a practical conclusion.
The organization of this Society is one of the great steps
forward in this second stage of development of the world-
wide peace movement.
The causes of war may be roughly, and of course super-
ficially and generally distributed into three categories. First,
there are the real differences between nations as to their
respective rights. One nation claims territory and another
claims the same territory. One nation claims the right to
trade in a particular way, at a particular place, and another
nation claims an exclusive right. There are a myriad ways
in which nations may come into dispute regarding real rights,
each nation believing that its side of the controversy is
based upon justice.
A second category is what I might call that of policy. The
policy of a country may be to push its trade, to acquire terri-
tory, to obtain a dominant influence, to insist upon a certain
course of action by other countries for its own protection
asserting that a different course of conduct would be danger-
ous to its safety. All those questions of policy, however, are
to a considerable degree, and very frequently, dependent
upon the determination of certain facts and the decision of
certain questions of international law.
JUDICIAL SETTLEMENT
147
A third category of causes of war may be described as being
matters of feeling. Deep and bitter feeling is often awakened
between peoples of different countries. We have got away
from the time when the pique or whim of an individual mon-
arch might plunge his subjects into a bloody and devastating
war, but we remain in the time when great masses of people
in different countries may become indignant over some slight
or insult, or a course of conduct which they deem to be injuri-
ous and unfair. These matters of feeling, which are the most
dangerous of all causes of war because they make the peoples
of two different countries want to fight, these matters of
feeling ordinarily depend in the beginning upon different
views regarding the specific rights of the two countries.
Now, as to the first kind of causes of war, the real contro-
versies about rights, it is plain that they ought to be decided,
and that all war based upon them may easily be obviated by
having them decided, in accordance with the rules of right
reason.
As to the two other classes of reasons for war, it is plain
that the little beginnings out of which they arise, the excuses
upon which they depend, may also be disposed of if taken in
time, and disposed of by reason and kindly consideration. So
that while it does not cover the whole ground, while it does
not by any means solve the whole question, yet at the bottom
of all the attempts practically to dispose of the causes of war,
lies the peaceable decision of questions of fact and law in
accordance with the rules of justice.
Now we have been for a good many years more and more
seeking to accomplish that by means of arbitration, and the
machinery for arbitration has been carefully devised and
agreed upon by the nations of the earth at the two successive
Hague conferences, so that it is comparatively easy for
nations to have recourse to that method of settling their
disputes.
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INTERNATIONAL SUBJECTS
But there are some difficulties about arbitration, practical
difficulties in the way of settling questions. I have said many
times and in many places that I do not think the difficulty
that stands in the way of arbitration today is an unwilling-
ness on the part of the civilized nations of the earth to submit
their disputes to impartial decision. I think the difficulty is
a doubt on the part of civilized nations as to getting an im-
partial decision. And that doubt arises from some character-
istics of arbitral tribunals which are very difficult to avoid.
In the first place, these tribunals are ordinarily made up by
selecting publicists, men of public affairs, great civil servants,
members of the foreign offices, men trained to diplomacy;
and the inevitable tendency is, and the result often has been,
in the majority of cases has been, that the arbitral tribunal
simply substitutes itself for the negotiators of the two parties,
and negotiates a settlement. Well, that is quite a different
thing from submitting your views of right and wrong, your
views of the facts and the law on which you base your claims
to right, to the decision of a tribunal, of a court. It is merely
handing over your interests to somebody to negotiate for
you; and there is a very widespread reluctance to do that in
regard to many cases; and the nearer the question at issue
approaches the verge of the field of policy, the stronger the
objection to doing that.
Another difficulty is that the arbitral tribunals, of course
being made up largely of members from other countries, the
real decision ordinarily being made by arbiters who come
from other countries and not from the countries concerned,
questions have to be presented to men trained under dif-
ferent systems of law, with different ways of thinking and of
looking at matters. There is a very wide difference between
the way in which a civil lawyer and a common-law lawyer
will approach a subject, and it is sometimes pretty hard for
them to understand each other even though they speak the
JUDICIAL SETTLEMENT
149
same language, while if they speak different languages it is
still more difficult.
Another difficulty is that a large part of the rules of inter-
national law are still quite vague and undetermined, and
upon many of them, and especially upon those out of which
controversy is most likely to arise, different countries take
different views as to what the law is and ought to be. And
no one can tell how one of these extemporized tribunals,
picked at haphazard, or upon the best information the
nego-
tiators of two countries can get, no one can tell what views
they are going to take about questions of international law,
or how they are going to approach subjects and deal with
them.
Now, it has seemed to me very clear that in view of these
practical difficulties standing in the way of our present sys-
tem of arbitration, the next step by which the system of
peaceable settlement of international disputes can be ad-
vanced, the pathway along which it can be pressed forward
to universal acceptance and use, is to substitute for the kind
of arbitration we have now, in which the arbitrators proceed
according to their ideas of diplomatic obligation, real courts
where judges, acting under the sanctity of the judicial oath,
pass upon the rights of countries, as judges pass upon the
rights of individuals, in accordance with the facts as found
and the law as established. With such tribunals, which are
continuous, and composed of judges who make it their life
business, you will soon develop a bench composed of men
who have become familiar with the ways in which the people
of every country do their business and do their thinking, and
you will have a gradual growth of definite rules, of fixed inter-
pretation, and of established precedents, according to which
you may know your case will be decided. It is with that view
that I have felt grateful to the gentlemen who have been
giving their time and efforts to the organization and estab-
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INTERNATIONAL SUBJECTS
lishment of this Society. I am sure that it is a step along the
scientific and practical method of putting into operation all
the principles that we have been preaching and listening to
for so many years. It is practical, and I believe it will be
effective.
There is a great deal of work for the Society to do. Our
people here in the United States are probably more ready to
assent to such a view as this than the people of any other
country in the world, because we have been long accustomed
to the existence of a great tribunal, a part of whose duty it is
to sit in judgment upon the question whether the govern-
ments of the sovereign states and the government of our own
nation, in their acts, conform to the great principles of justice
and right conduct embodied in our Constitution. That ar-
rangement, of embodying the eternal principles of justice in
a written instrument, investing a court with the power to
declare all acts of congresses, and legislatures, and presi-
dents and governors, void and of no effect when they fail to
conform to those principles, is, it seems to me, the greatest
contribution of America to the political science of the world.
We are accustomed to seeing the actions of the men who hold
the
power, the actions of the legislative bodies that hold the
purse strings, submitted to the adjudication of the court
which has no power to enforce its decrees, except the confi-
dence of the whole people behind it. We are accustomed to
that, and it seems natural to us that nations, however great,
and rulers, however powerful, should go before a court and
submit the question whether their actions and their views
accord with the principles of justice. But it does not seem
so to most of the world. It is rather a new idea, and it will
take time and argument and exposition to bring the world in
general to the acceptance of that view. And upon that long
journey this Society has entered. A prosperous voyage to
it, and a safe arrival!
JUDICIAL SETTLEMENT
151
I have said that the time has come for practical dealing
with specific causes and specific remedies. Do not under-
stand me as believing that this is to be substituted for the
continuous and unwearied assertion and reassertion of the
great principles upon which the movement for peace and .
justice must depend in all parts and in every phase. For,
however great may be the material wealth and power of these
great nations, after all, what rules the world, the one thing
that is eternal and all-powerful, is the intangible and the
sentimental.
To the first meeting of the American Society for Judicial Settlement of
International Disputes, Mr. Root sent a letter, from which the following
is an extract:
I beg to say to your guests that I sympathize very strongly with
their object and believe that the proposed organization is adapted to
render a great public service. I assume that the new organization is
to have a definite, specific object which may be indicated by em-
phasizing the word “judicial ” in its title to indicate a distinction
between that kind of settlement of international disputes and the
ordinary arbitration as it has been understood in the past and is
generally understood now.
I assume that you are going to urge that disputes between nations
shall be settled by judges acting under the judicial sense of honorable
obligation, with a judicial idea of impartiality, rather than by diplo-
mats acting under the diplomatic ideas of honorable obligation and
feeling bound to negotiate a settlement rather than to pass without
fear or favor upon questions of fact and law.
It seems to me that such a change in the fundamental idea of what
an arbitration should be is essential to any very great further exten-
sion of the idea of arbitration. I have been much surprised, however,
to see how many people there are of ability and force who do not
agree with this idea at all, particularly people on the other side of
the Atlantic. The extraordinary scope of judicial power in this
country has accustomed us to see the operations of government and
questions arising between sovereign states submitted to judges who
apply the test of conformity to established principles and rules of
conduct embodied in our constitutions.
It seems natural and proper to us that the conduct of government
affecting substantial rights, and not depending upon questions of
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INTERNATIONAL SUBJECTS
policy, should be passed upon by the courts when occasion arises.
It is easy, therefore, for Americans to grasp the idea that the same
method of settlement should be applied to questicns growing out of
the conduct of nations and not involving questions of policy.
In countries, however, where the courts exercise no such power,
the idea is quite a new one to most people, and, if it is to prevail
,
there must be a process of education. Such a process will naturally
receive its chief impulse in the United States, and I hope your new
society will give such an impulse with vigor and accurate direction.
NOBEL PEACE PRIZE ADDRESS
REQUIRED BY THE STATUTES OF THE NOBEL FOUNDATION
UPON THE AWARD OF THE PEACE PRIZE
FOR THE YEAR 1912
The Swedish scientist, Alfred Nobel, inventor of dynamite, died December 10,
1896, and established by his will a fund of approximately nine million dollars, the
interest of which should every year be distributed to those who had contributed
most to “ the good of humanity.” The interest thus provided for was to be divided
into five equal shares and distributed one to the person who in the domain of
physics has made the most important discovery or invention, one to the person who
has made the most important chemical discovery or invention, one to the person
who has made the most important discovery in the domain of medicine or physi-
ology, one to the person who in literature has provided the most excellent work of
an idealistic tendency, and one to the person who has worked most or best for the
fraternization of nations, and the abolition or reduction of standing armies, and the
calling and propagating of peace congresses.”
The fund becameavailable in the year 1901, and the individual prize, amounting to
about $40,000, is awarded annually on the anniversary of Mr. Nobel's death.
The Nobel Peace Prize for 1912, reserved, in conformity with article 5 of the
statutes, for the year 1913, was conferred upon Elihu Root. The committee made
its decisions known to the public on December 10, 1913, the anniversary of Mr.
Nobel's death, in the hall of the Nobel Institute at Christiania. Mr. Lövland,
president of the committee, presided at the ceremony. The secretary of the com-
mittee, Mr. Moe, delivered an address on Mr. Root's political career, from which
the following is an extract:
In August, 1899, he [Mr. Root) was appointed Secretary of War by Presi-
dent McKinley and remained in office during Mr. Roosevelt's administration
until February, 1904. Upon the death of Secretary of State John Hay, in July,
1905, Mr. Root succeeded to that office and directed the foreign affairs of the
United States up to the expiration of Mr. Roosevelt's term, in March, 1909.
It was his task, as Secretary of War, to lay the bases of the plan for the re-
organization of Cuba and the Philippines in their relation to the United States
after the Spanish-American war.
As Secretary of State, he made a notable journey to South America, during
which he visited the Third Pan-American Congress at Rio de Janeiro. In 1907,
he visited Mexico. The object of these visits was to remove the long-standing
distrust of their Anglo-Saxon sister on the part of the Latin Republics, and to
further the efforts made in the interest of Pan-Americanism. In 1908 there
was founded at Washington the Pan-American Bureau, under the direction
of the Secretary of State of the United States, in cooperation with the
Ministers of the American Republics accredited to Washington. Mr. Root
took the initiative in calling a Central American Peace Congress at Washington
159
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INTERNATIONAL SUBJECTS
in 1907. The following year a permanent court for the Central American states
was created at Cartago, Costa Rica.
The most difficult task that fell to Mr. Root as Secretary of State was the
settlement of the dispute between the United States and Japan on the question
of Japanese immigrants in California, in 1906–07. It is impossible to give here
the history of this great question, which assumed a threatening aspect in the
winter of 1907. It will suffice to say that the peaceful settlement of the dispute,
clinched by the action of the Congress at Washington in passing the immigra-
tion act of March 19, 1907, followed by the identic note of November, 1908,
was due to the efforts of Mr. Root.
Long alone among American statesmen in his stand on the question, he
vigorously attacked the act of August, 1912, providing for the free passage
of
American coastwise vessels through the Panama Canal. His eloquent speech
in the Senate on January 21, 1913, was distributed among the friends of peace
throughout the entire world. Since his retirement Mr. Root has been recog-
nized as the leader of the peace movement in the United States. He is President
of the American Society of International Law and of the great Carnegie
Endowment for International Peace.1
In accordance with the statutes of the Nobel Foundation, the laureate of the
Peace Prize is required to deliver an address in person at Christiania, Norway. The
date for the delivery of Mr. Root's address was set for September 8, 1914, but
delivery was prevented by the outbreak of the European war.
The address prepared by Mr. Root for that occasion is here printed exactly as
was prepared for delivery before the outbreak of the war, without the change of a
word or syllable.
Time
HE humanitarian purpose of Alfred Nobel in establish-
ing the peace prize which bears his name was doubtless
not merely to reward those who should promote peace among
nations, but to stimulate thought upon the means and
methods best adapted, under the changing conditions of
future years, to approach and ultimately attain the end he
so much desired.
The apparent simplicity of the subject is misleading.
Recognition of the horrors of war and the blessings of peace,
acceptance of the dogma “War is wrong and to keep the
peace a duty,” are so universal that upon the surface it
seems only necessary to state a few incontrovertible truths
and to press them upon the attention of mankind, in order
to have war end and peace reign perpetually.
1 Translated from Les Prix Nobel en 1913, Stockholm (1914), pp. 64-65.
NOBEL PRIZE ADDRESS
155
Yet the continual recurrence of war and the universally
increasing preparations for war based upon expectation of it
among nations all of whom declare themselves in favor of
peace, indicate that intellectual acceptance of peace doctrine
is not sufficient to control conduct, and that a general feeling
in favor of peace, however sincere, does not furnish a strong
enough motive to withstand the passions which lead to war
when a cause of quarrel has arisen. The methods of peace
propaganda which aim at establishing peace doctrine by
argument and by creating a feeling favorable to peace in
general, seem to fall short of reaching the springs of human
action and of dealing with the causes of the conduct which
they seek to modify. It is much like treating the symptoms
of disease instead of ascertaining and dealing with the cause
of the symptoms. The mere assemblage of peace-loving
people to interchange convincing reasons for their common
faith; mere exhortation and argument to the public in favor
of peace in general fall short of the mark.
They are useful, they serve to strengthen the faith of the
participants, they tend very gradually to create a new stand-
ard of conduct, just as exhortations to be good and demon-
strations that honesty is the best policy have a certain utility
by way of suggestion. But they do not, as a rule, reach or
extirpate or modify the causes of war.
Occasionally some man with exceptional power of state-
ment or of feeling, and possessed by the true missionary
spirit, will deliver a message to the world, putting old truths
in such a way as to bite into the consciousness of civilized
peoples and move mankind forward a little, with a gain
never to be altogether lost. But the mere repetition of the
obvious by good people of average intelligence, while not
without utility and not by any means to be despised as an
agency for peace, nevertheless is subject to the drawback
that the unregenerate world grows weary of iteration and
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INTERNATIONAL SUBJECTS
reacts in the wrong direction. The limitation upon this
mode of promoting peace lies in the fact that it consists in an
appeal to the civilized side of man, while war is the product of
forces proceeding from man's original savage nature. To
deal with the true causes of war one must begin by recogniz-
ing as of prime relevancy to the solution of the problem the
familiar fact that civilization is a partial, incomplete, and,
to a great extent, superficial modification of barbarism. The
point of departure of the process to which we wish to con-
tribute is the fact that war is the natural reaction of human
nature in the savage state, while peace is the result of ac-
quired characteristics. War was forced upon mankind in his
original civil and social condition. The law of the survival
of the fittest led inevitably to the survival and predominance
of the men who were effective in' war and who loved it
because they were effective. War was the avenue to all that
mankind desired. Food, wives, a place in the
place in the sun, freedom
from restraint and oppression, wealth of comfort, wealth of
luxury, respect, honor, power, control over others, were sought
and attained by fighting. Nobody knows through how many
thousand of years fighting men have made a place for them-
selves while the weak and peaceable have gone to the wall.
Love of fighting was bred in the blood of the race, because those
who did not love fighting were not suited to their environ-
ment and perished. Grotius himself sets war first in the title
of his great work, De Jure Belli ac Pacis, as if, in his mind,
war was the general and usual condition with which he was to
deal, and peace the occasional and incidental field of inter-
national relation. And indeed the work itself deals chiefly
with war, and only incidentally with peaceful relations.
• In attempting to bring mankind to a condition of per-
manent peace in which war will be regarded as criminal con-
duct, just as civilized communities have been brought to a
condition of permanent order, broken only by criminals who
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war against society, we have to deal with innate ideas, im-
pulses and habits, which became a part of the cave man's
nature by necessity from the conditions under which he
lived; and these ideas and impulses still survive more or less
dormant under the veneer of civilization, ready to be excited
to action by events often of the most trifling character. As
Lord Bacon says “Nature is often hidden, sometimes over-
come, seldom extinguished.” To eradicate or modify or curb
the tendencies which thus survive among civilized men is not
a matter of intellectual conviction or training. It is a matter
primarily of development of character and the shifting of
standards of conduct - a long, slow process in which ad-
vance is to be measured, not by days and years but by
generations and centuries in the life of nations.
The attractive idea that we can now have a parliament of
man with authority to control the conduct of nations by
legislation or an international police force with power to
enforce national conformity to rules of right conduct is a
counsel of perfection. The world is not ready for any such
thing, and it cannot be made ready except by the practical
surrender of the independence of nations, which lies at the
basis of the present social organization of the civilized world.
Such a system would mean that each nation was liable to be.
lawfully controlled and coerced by a majority of alien powers.
That majority alone could determine when and for what
causes and to what ends the control and coercion should be
exercised. Human nature must have come much nearer
perfection than it is now, or will be in many generations, to
exclude from such a control prejudice, selfishness, ambition
and injustice. An attempt to prevent war in this way would
breed war, for it would destroy local self-government and
drive nations to war for liberty. There is no nation in the
world which would seriously consider a proposal so shocking
to the national pride and patriotism of its people.
}
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1
To help in the most practical and efficient way towards
making peace permanent, it is needful to inquire with some
analysis what are the specific motives and impulses, the
proximate causes which, under the present conditions of the
civilized world, urge nations to the point where the war
passion seizes upon them. And then we should inquire what
are the influences which naturally tend or may be made to
tend towards checking the impulse, destroying the motive,
preventing the proximate cause, before passion has become
supreme and it is too late.
It is to be observed that every case of war averted is a gain
in general, for it helps to form a habit of peace, and com-
munity habits long continued become standards of conduct.
The life of the community conforms to an expectation of their
continuance, and there comes to be an instinctive opposition
to any departure from them.
The first and most obvious cause for international contro-
versy which suggests itself is in the field of international
rights and obligations. Claims of right and insistence upon
obligations may depend upon treaty stipulations or upon
the rules of international law or upon the sense of natural
justice applied to the circumstances of a particular case, or
upon disputed facts. Upon all these there are continually
arising controversies as to what are the true facts; what is
the rule of international law applicable to the case; what
is the true interpretation of the treaty; what is just and fair
under the circumstances. This category does not by any
means cover the entire field out of which causes of war arise,
but no one should underestimate its importance. Small
differences often grow into great quarrels, and honest dif-
ferences of opinion frequently produce controversies in
which national amour propre is involved and national honor,
dignity and prestige are supposed to be at stake. Rival
claimants to an almost worthless strip of land along a dis-
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159
puted boundary, a few poor fishermen contesting each others'
rights to set nets in disputed waters, may break into violence
which will set whole nations aflame with partisanship upon
either side. Reparation demanded for injury to a citizen or
an insult to a flag in foreign territory may symbolize in the
feeling of a great people their national right to independence,
te respect, and to an equal place in the community of nations.
The people of a country, wholly mistaken as to their national
rights, honestly ignorant of their international obligations,
may become possessed of a real sense of injustice, of deep
resentment, and of a sincere belief that the supreme sacrifice
of war is demanded by love of country, its liberty and
independence, when in fact their belief has no just founda-
tion whatever.
- In this field the greatest advance is being made towards
reducing and preventing in a practical and effective way the
causes of war, and this advance is proceeding along several
different lines. First, by providing for the peaceable settle-
ment of such controversies by submission to an impartial
tribunal. Up to this time that provision has taken the form
of arbitration, with which we are all familiar. There have
been occasional international arbitrations from very early
times, but arbitration as a system, a recognized and custom-
ary method of diplomatic procedure rather than an excep-
tional expedient, had its origin in The Hague Conference of
1899. It is interesting to recall the rather contemptous re-
ception accorded to the Convention for the Pacific Settlement
of International Disputes concluded at that conference, and
to the Permanent Court at The Hague which it created. The
convention was not obligatory. No power was bound to
comply with it. The cynicism with which the practical
diplomatist naturally regards the idealist pronounced it a
dead letter. But the convention expressed, and, by express-
ing, established, a new standard of international conduct
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INTERNATIONAL SUBJECTS
which practical idealism had long been gradually approach-
ing, for which thoughtful men and women in all civilized
lands had been vaguely groping, which the more advanced
nations welcomed and the more backward nations were
ashamed to reject. Let me quote the recitals with which the
delegates prefaced their work:
Animated by a strong desire to concert for the maintenance of the
general peace;
Resolved to second by their best efforts the friendly settlement of
international disputes;
Recognizing the solidarity which unites the members of the society of
civilized nations;
Desirous of extending the empire of law, and of strengthening the
appreciation of international justice;
Convinced that the permanent institution of a Court of Arbitration,
accessible to all, in the midst of the independent Powers, will contribute
effectively to this result;
Having regard to the advantages attending the general and regular
organization of arbitral procedure;
Sharing the opinion of the august initiator of the International Peace
Conference that it is expedient to record in an international agreement the
principles of equity and right, on which are based the security of states
and the welfare of peoples, etc.
These declarations, although enforced by no binding stipu-
lation, nevertheless have become principles of action in
international affairs, because, through the progress of civili-
zation and the influence of many generations of devoted
spirits in the cause of humanity, the world had become ready
for the setting up of the standard. The convention would
have been a dead letter if the world had not been made ready
for it, and, because the world was ready, conformity to the
standard year by year has become more universal and com-
plete. Since this convention, which was binding upon no
state, one hundred and thirteen obligatory general treaties of
arbitration have been made between powers who have taken
part in The Hague Conferences, and sixteen international
controversies have been heard and decided, or are pending
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before, that tribunal according to the last report of the
Administrative Council of the Court.
Quite apart from the statistics of cases actually heard or
pending, it is impossible to estimate the effect produced by
the existence of this court, for the fact that there is a court
to which appeal may be made always leads to the settlement
of far more controversies than are brought to judgment. Nor
can we estimate the value of having this system a part of the
common stock of knowledge of civilized men, so that, when
an international controversy arises, the first reaction is, not
to consider war but to consider peaceful litigation.
Plainly, the next advance to be urged along this line is to
pass on from an arbitral tribunal, the members of which are
specifically selected from the general list of the court for each
case, and whose service is but an incident in the career of a
diplomatist or a publicist, to a permanent court composed
of judges who devote their entire time to the performance of
judicial duties and proceed in accordance with a sense of judi-
cial obligation, not to adjust or compromise differences, but
to decide upon rights in accordance with the facts and the law.
Long steps in this direction were made in the Second Hague
Conference by the convention for the establishment of a
permanent international prize court and by the formulation
and adoption of a draft convention relative to the creation of
a general judịcial arbitration court. This draft convention
lacked nothing of completion except an agreement upon the
method by which the judges were to be selected. Towards
the creation of such a court the best efforts of those who wish
to promote peace should be directed.
The second line of advance in this same field of interna-
tional controversy is in pressing forward the development of
international law and the agreement of nations upon its rules.
Lord Mansfield described the law of nations as “ founded
upon justice, equity, convenience, the reason of the thing,
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INTERNATIONAL SUBJECTS
and confirmed by long usage. There are multitudes of
events liable to occur frequently in the intercourse of nations,
regarding which there has never been any agreement as to
what is just, equitable, or convenient, and, as to many of the
classes of controversy, different views are held by different
nations, so that in a large part of the field with which an
arbitral tribunal or international court should deal there is
really no law to be applied. Where there is no law, a sub-
mission to arbitration or to judicial decision is an appeal, not
to the rule of law but to the unknown opinions or predilec-
tions of the men who happen to be selected to decide. The
development of the peaceable settlement of international dis-
putes by the decision of impartial tribunals waits therefore
upon the further development of international law by a more
complete establishment of known and accepted rules for the
government of international conduct.
In this direction also great progress has been made within
recent years. The ordinary process of reaching rules of inter-
national law through the universal assent of nations, ex-
pressed as particular cases arise from time to time in the
ordinary course of international affairs, is so slow that,
instead of making progress towards a comprehensive law of
nations by such a method, the progress of the law has been
outstripped by the changes of condition in international
affairs, so that the law has been growing less and less ade-
quate to settle the questions continually arising. The
Declaration of Paris, in 1856, by a few simple rules dealing,
not with particular cases, but looking to the future through
an agreement of the powers signing the convention, was a new
departure in the method of forming international law. That
method has developed into the action of the two Hague Con-
ferences of 1899 and 1907, which were really law-making
bodies, establishing, by the unanimous vote of the powers,
rules of conduct for the future, covering extensive portions
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of the field of international conduct. The action of The
Hague Conferences would have been impossible if it had not
been for the long continued and devoted labors of the Institut
de Droit International, which, in its annual meetings for forty
years, has brought together the leaders of thought in the
science of the law of nations in all the countries of the civi-
lized world to discuss unofficially, with a free and full expres-
sion of personal opinion, the unsettled problems as to what
the law is and ought to be. The conclusions of that body
furnished to the successive Hague Conferences the matured
results of years of well directed labor and bore the same rela-
tion to the deliberations of the conferences as the report of a
committee of a legislative body in furnishing the basis for
deliberation and action. Their work should be encouraged
and their example should be followed.
Further Hague Conferences should be insisted upon. They
should be made to recur at regular periods without requiring
the special initiative of any country. The process of formu-
lating and securing agreement upon rules of international
law should be pressed forward in every direction.
There is a third line of progress, little, if any, less important
than the two already mentioned, and that is, the instruction
of students and of the great bodies of the people of civilized
countries in the knowledge of international law. Under the
modern development of constitutional governments, with
varying degrees of extension of suffrage, more and more the
people who cast the ballots determine the issues of peace and
war. No government now embarks in war without the as-
surance of popular support. It is not uncommon in modern
times to see governments straining every nerve to keep the
peace, and the people whom they represent, with patriotic
enthusiasm and resentment over real or fancied wrongs
urging them forward to war. Nothing is more important in
the preservation of peace than to secure among the great
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INTERNATIONAL SUBJECTS
mass of the people living under constitutional government a
just conception of the rights which their nation has against
others and of the duties their nation owes to others. The
popular tendency is to listen approvingly to the most extreme
statements and claims of politicians and orators who seek
popularity by declaring their own country right in every-
thing and other countries wrong in everything. Honest
people, mistakenly believing in the justice of their cause, are
led to support injustice. To meet this tendency there should
be not merely definite standards of law to be applied to
international relations, but there should be general public
understanding of what those standards are. Of course it is
not possible that all the people of any country can become
familiar with international law, but there may be such knowl-
edge and leadership of opinion in every country on the part
of the most intelligent and best educated men that in every
community mistaken conceptions can be corrected and a
true view of rights and obligations inculcated. To attain
this end much has been done and much is in contemplation.
Societies of international law have been formed in many
countries for the discussion of international questions and
the publication and distribution of the results. Many
journals of international law have been established and are
rapidly increasing their circulation and influence. More and
more colleges and universities are establishing chairs and
giving instruction in international law to their students. A
further step is about to be taken at The Hague by the estab-
lishment there of an international school of international law
to which scholars from all over the civilized world will come
and in which the great masters of the science have under-
taken to give instruction. There can be no better augury for
the success of the new institution than the fact that it found
its origin in the general enthusiasm of Ludwig von Bar of
Göttingen, of Otfried Nippold of Frankfort, of Demetrius
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Sturdza of Roumania, and of T.M.C. Asser of Holland; and
that it has for its president Louis Renault of France. The
distinctive feature of this new departure is that it will bring
together teachers and students from many countries; so
that their intercourse and instruction will tend towards the
unification of rules and the establishment of a general stand-
ard of law instead of perpetuating the differing and often
antagonistic conceptions which obtain within the limits of
different nations.
Along all these lines of practical effort for peace in the
development of arbitration and judicial decision in the de-
velopment of a definite system of law determining the rights
and obligations of nations, and in the enlightenment of the
civilized nations as to what their rights and obligations are,
the present generation has rendered a service in the cause of
peace surpassing that of many centuries gone before, and in
further development along these same lines the present gen-
eration has before it a golden opportunity for further service.
There is, however, another class of substantive causes of
war which the agencies I have described do not reach directly.
This comprises acts done or demanded in pursuance of na-
tional policy, and ordinarily either for the enlargement or
protection of territory or for trade or industrial advantage.
The conduct of a nation under such a policy is often regarded
by other nations as unwarranted aggression or as threatening
their safety or their rights. Illustrations of this kind of
question are to be found in the protean forms of the Eastern
question and of the balance of power in Europe, in the asser-
tion of the Monroe Doctrine by the United States; in the
position of Germany regarding the settlement of Morocco,
before the Conference of Algeciras; in the attitude of Great
Britain regarding Agadir, after that conference. It is plain
that, under the present organization of civilization in inde-
pendent nationalities, questions of public policy supposed to
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INTERNATIONAL SUBJECTS
be vital cannot be submitted to arbitration, because that
would be an abdication of independence and the placing of
government pro tanto in the hands of others. The indepen-
dence of a state involves that state's right to determine its
own domestic policy and to decide what is essential to its own
safety.
It does not follow, however, that we are without oppor-
tunity to promote and strengthen specific influences tending
to diminish or prevent causes of war of this description. In
the first place, when there is a policy of intentional aggres-
sion, inspired by a desire to get possession of the territory or
the trade of another country, right or wrong, a pretext is
always sought. No nation now sets forth to despoil another
upon the avowed ground that it desires the spoils. Some
ground of justification is always alleged. The wolf always
charges the lamb with muddying the stream. The frank and
simple days of the Roman proconsul and of the robber baron
have passed, and three things have happened: First, there
has come to be a public opinion of the world; second, that
opinion has set up a new standard of national conduct which
condemns unjustified aggression; and third, the public
opinion of the world punishes the violation of its standard.
It has not been very long since the people of each country
were concerned almost exclusively with their own affairs,
and, with but few individual exceptions, neither knew nor
cared what was going on outside their own boundaries. All
that has changed. The spread of popular education; the
enormous increase in the production and circulation of news-
papers and periodicals and cheap books; the competition of
the press, which ranges the world for news; the telegraph,
which carries instantly knowledge of all important events
everywhere to all parts of the world; the new mobility of
mankind, which availing itself of the new means of travel by
steamship and railroad, with its new freedom under the
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recently recognized right of expatriation and the recently
established right of free travel, moves to and fro by the
million across the boundaries of the nations; the vast exten-
sion of international commerce; the recognition of inter-
dependence of the peoples of different nations engendered by
this commerce and this intercourse; their dependence upon
each other for the supply of their needs and for the profitable
disposal of their products, for the preservation of health, for.
the promotion of morals and for the increase of knowledge
and the advance of thought; — all these are creating an in-
ternational community of knowledge and interest, of thought
and feeling. In the hundreds of international associations
reported by Senator LaFontaine's L'Office Central at Brus-
sels, men of all nations are learning to think internationally
about science and morals and hygiene and religion and
society and business. Gradually, everything that happens
in the world is coming to be of interest everywhere in the
world, and, gradually, thoughtful men and women every-
where are sitting in judgment upon the conduct of all. na-
tions. Some very crass and indefensible things have been
done by nations within the past few years, but no one can
read the discussions about those national acts without see-
ing that the general judgment of mankind has sunk deep
into the hearts of the people of the countries responsible;
that a great new force is at work in international affairs;
that the desire for approval and the fear of condemnation by
the contemporary opinion of the civilized world is becoming
a powerful influence to control national conduct. True, we
are but at the beginning, but it is the beginning of a great
new era in which the public opinion of mankind renders
judgment, not upon peace and war, for a vast majority of
mankind is in favor of war when that is necessary for the
preservation of liberty and justice, but upon the just and
unjust conduct of nations, as the public opinion of each
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INTERNATIONAL SUBJECTS
community passes upon the just and unjust conduct of its
individual members. The chief force which makes for peace
and order in the community of individuals is not the police
officer, with his club, but it is the praise and blame, the honor
and shame, which follow observance or violation of the com-
munity's standards of right conduct. In the new era that is
dawning of the world's public opinion we need not wait for
the international policeman, with his artillery, for, when any
people feels that its government has done a shameful thing
and has brought them into disgrace in the opinion of the
world, theirs will be the vengeance and they will inflict the
punishment.
Two conclusions from all these considerations are quite
obvious: First, that the development and understanding of
international law and the habit of submitting international
controversies to judicial decision will continually tend to
hinder wanton aggression, because it will tend to make it
more difficult to find pretexts, excuses, or justification.
Second, that quite apart from argument and exhortation
concerning war and peace, there is a specific line of effort
along which those who seek to promote peace may most
usefully proceed; by insisting upon a willingness to do justice
among nations, and this, not justice according to the pos-
sibly excited and warped opinion of the particular nation,
but according to the general public judgment of the civilized
world; by condemning injustice on the part of nations as we
condemn injustice on the part of individuals; by pressing
upon the peoples of the earth a consciousness that if they are
arrogant and grasping and overbearing and use their power
to oppress and despoil the weak, they will be disgraced in the
estimation of mankind. Such an effort is not a denial of
the innate impulses of the race, but is an appeal to them. It
accords with the line of historic development. The taboo
of savage tribes is nothing else. The social penalties of
1
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civilized communities are the same thing. The theoretical
postulate of all diplomatic discussion between nations is the
assumed willingness of every nation to do justice. The line
of least resistance in the progress of civilization is to make
that theoretical postulate real by the continually increasing
force of the world's public opinion.
Yet there are other influences tending in the same direction
which may be usefully promoted. The self-interest which so
often prompts nations to unjust aggression can no longer
safely assume that its apparent profit is real; for a nation
which has been built up by the industry and enterprise of its
people, which depends upon its products and the marketing
of them, upon its commerce and the peaceful intercourse of
commerce for its prosperity, the prize of aggression must be
rich indeed to counterbalance the injury sustained by the
interference of war with both production and commerce.
At the same time, freedom of trade regardless of political
control is diminishing the comparative value of extension of
territory. The old system of exploitation of colonies and the
monopolization of their trade for the benefit of the mother
country has practically disappeared. The best informed men
are coming to understand that, under modern conditions,
the prosperity of each nation is enhanced by the prosperity
of all other nations; and that the government which acquires
political control over new territory may gratify pride and
minister to ambition, but can have only a slight effect to
advance the welfare of its people.
The support of these statements rests upon the facts of
economic science. If they are true, as I am sure we all be-
lieve them to be, they should be forced upon the attention of
the peoples, not by mere assertion, which avails but little,
but by proof drawn from the rich stores of evidence to be
found in the history of mankind. For the accomplishment of
this
purpose a meeting of eminent economists and publicists
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INTERNATIONAL SUBJECTS
was held three years ago at Berne. They came from Den-
mark, Holland, Belgium, Great Britain, France, Germany,
Switzerland, Italy, Austria-Hungary, the United States and
Japan. For some weeks they devoted themselves to the
preparation of a program for systematic, scientific investiga-
tion into the historical and economic causes and effects of
war. For the three years which have ensued they have been
engaged, with ample and competent assistance, in pursuing
their investigations. The first installments of their work are
ready for publication, and they reconvened last month to
review what has been done and to lay down the lines of
further work. The results of their labors, when made
available, should be eagerly sought by every lover of peace
who is competent by tongue or pen to be a teacher of his
fellow-men, for we may be confident they will show that
while the sacrifice of war may be demanded for justice, for
liberty, for national life, yet war is always a sacrifice, and
never is a rational mode of promoting ṁaterial prosperity.
There yet remain certain disposing causes, which, quite
apart from real substantive questions in controversy, operate
upon national feeling and give injurious effect to trifling or
fancied occasions for offense. There is no international con-
troversy so serious that it cannot be settled if both parties
really wish to settle it. There are few controversies so trifling
that they cannot be made the occasion for war if the parties
really wish to fight. Among these disposing causes which
create an atmosphere of belligerency are:
Race and local prejudice, breeding dislike and hatred
between the peoples of different countries.
Exaggerated national amour propre, which causes exces-
sive sensitiveness and excessive resentment of foreign
criticism or opposition.
With these go the popular assumption, often arrogant,
often ignorant, that the extreme claims of one's country are
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always right and are to be rigidly insisted upon as a point of
national honor. With them go intolerance of temperate dis-
cussion, of kindly consideration, and of reasonable concession.
Under these feelings insulting words and conduct towards
foreign governments and people become popular, and brag-
gart defiance is deemed patriotic. Under them the ambi-
tious aspirants of domestic politics seek preferment through
avenues of military success.
And under them deep and real suspicions of the sinister
purpose of other nations readily take possession of a people,
who become ready to believe that an attack by their own
country is the only recourse-to guard effectually against an
attack upon their country by others, and that patriotism
requires them to outstrip other countries in armament and
preparation for war.
Prejudice and passion and suspicion are more dangerous
than the incitement of self-interest or the most stubborn
adherence to real differences of opinion regarding rights. In
private life more quarrels arise, more implacable resentment
is caused, more lives are sacrificed, because of insult than
because of substantial injury. And it is so with nations.
The remedy is the same. When friends quarrel we try to
dissipate their misunderstandings, to soften their mutual
feelings, and to bring them together in such a way that their
friendship may be renewed. Misunderstanding and preju-
dice and dislike are, as a rule, the fruits of isolation. There
is so much of good in human nature that men grow to like
each other upon better acquaintance, and this points to
another way in which we may strive to promote the peace of
the world. That is, by international conciliation through
intercourse, not the formal intercourse of the traveller or the
merchant, but the intercourse of real acquaintance, of per-
sonal knowledge, of little courtesies and kindly consideration;
by the exchange of professors between universities, by the
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INTERNATIONAL SUBJECTS
{ A
exchange of students between countries; by the visits to
other countries on the part of leaders of opinion, to be re-
ceived in private hospitality and in public conference; by
the spreading of correct information through the press; by
circulating and attracting attention to expressions of praise
and honor rather than the reverse; by giving public credit
where credit is due and taking pains to expose and publish
our good opinions of other peoples; by coöperation in the
multitude of causes which are world-wide in their interest; by
urging upon our countrymen the duty of international
civility and kindly consideration; and by constant pressure
in the right direction in a multitude of ways - a slow
process, but one which counts little by little if persisted in.
Each separate act will seem of no effect but all together
they will establish and maintain a tendency towards the goal
of international knowledge and broad human sympathy.
There is a homely English saying, “Leg over leg the dog
went to Dover.” That states the method of our true prog-
ress. We cannot arrive at our goal per saltum. Not by
invoking an immediate millenium, but by the accumulated
effects of a multitude of efforts, each insignificant in itself,
but steadily and persistently continued, we must win our
way along the road to, better knowledge and kindliness
among the peoples of the earth which the will of Alfred Nobel
describes as “the fraternity of nations."
There are many reasons to believe that progress toward
the permanent prevalence of peace may be more rapid in the
future than in the past.
Standards of conduct are changing in many ways unfavor-
able to war.
Civilized man is becoming less cruel. Cruelty to men and
to the lower animals as well, which would have passed un-
noticed a century ago, now shocks the sensibilities and is
regarded as wicked and degrading. The severity of punish-
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ments for minor offenses which formerly prevailed now seems
to us revolting. The torture of witnesses or of criminals has
become unthinkable. Human life is held in much higher
esteem and the taking of it; whether in private quarrel or by
judicial procedure, is looked upon much more seriously than
it was formerly. The social reaction from the theories of the
individualistic economists of the last century has brought
with it a very wide-spread sense that men have some sort of
responsibility to cause affairs to be so. ordered in civilized
communities that their fellow-men have a chance to live.
The Hague Conventions to regulate the conduct of war and
the Geneva Conventions to ameliorate its horrors have a
significance which goes beyond their professions. They mark
the changing attitude of the world towards the subject to
which they relate; and they introduce into the business of
warfare obligatory considerations of humanity and respect .
for human rights which tend to destroy the spirit upon which
alone the business itself can continue. No one can read those
conventions closely without being struck by the similarity
of the process of regulation and limitation which they exhibit
with the historic process by which private war was ultimately
regulated out of existence in the greater part of the civilized
world. The growth of modern constitutional government
compels for its successful practice the exercise of reason and
considerate judgment by the individual citizens who con-
stitute the electorate. The qualities thus evoked in the train-
ing schools of domestic affairs are the qualities which make
for national self-restraint and peace in international affairs.
History is being rewritten, and the progress of popular
education is making men familiar with it; and as the world,
which worships strength and has most applauded military
glory, grows in knowledge, the great commanding figures
rising far above the common mass of mere fighters, the men
who win the most imperishable fame have come to be the
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INTERNATIONAL SUBJECTS
strong, patient, great-hearted ones like Washington, and
Lincoln, and William the Silent, and Cavour, whose genius
inspired by love of country and their kind urges them to
build up and not to destroy. The sweetest incense offered to
the memory of the soldier is not to the brutal qualities of war
but to the serene courage ennobled by sympathy and cour-
tesy of a Bayard or a Sidney. The hero-worshipper is grad-
ually changing from the savage to the civilized conception
of his divinities. Taken all in all the clear and persistent
tendencies of a slowly developing civilization justify cheerful
hope.
We may well turn from Tripoli and Mexico and the
Balkans with the apocryphal exclamation of Galileo, “ And
still the world moves."
1
THE ETHICS OF THE PANAMA QUESTION
AN ADDRESS BEFORE THE UNION LEAGUE CLUB OF
CHICAGO, FEBRUARY 22, 1904
As Secretary of State, Mr. Root was exceedingly anxious to secure the recog-
nition by Colombia of the independence of Panama, and to restore the friendly
relations which had existed between Colombia and the United States but which
were unfortunately strained to the breaking-point by the revolution in Panama,
and the recognition of its independence by the United States. He, therefore,
negotiated a tripartite agreement, consisting of three separate treaties, each of
which was to be ratified in order that the tripartite agreement should be binding
upon the contracting parties. The agreement entitled “The Ship Canal Treaty”,
was signed at Washington, January 9, 1909.
The first treaty was between Colombia and the United States, and its ratifica-
tion was advised and consented to by the Senate on February 24, 1909; the second
treaty was between Panama and the United States, and its ratification was ad-
vised and consented to by the Senate on March 3, 1909; the third treaty was
between Colombia and Panama. The failure of Colombia to ratify these treaties,
or any of them, prevented the adjustment of the difficulty between Colombia and
the United States during Mr. Root's tenure of office.
The text of the three treaties forming the tripartite agreement is to be found in
“ Treaties, Conventions, International Acts, Protocols and Agreements between
the United States and Other Powers”, compiled by Garfield Charles, vol. 3, pp.
235–247, Washington, 1913.
O
N November 3, 1903 the people of Panama revolted
against the government of Colombia, and proclaimed
their independence. On the thirteenth of November the
United States recognized the independence of the republic
of Panama, by receiving a minister from the new Govern-
ment, and at the opening of the regular session of Congress
in December the President asked the consent of the Senate
to a treaty negotiated between our Secretary of State, Mr.
Hay, and the minister of Panama, Mr. Varilla, providing for
the construction by the United States of a ship canal across
the Isthmus, to be kept by us open, neutral, and free upon
equal terms for the use of all mankind. After long and ex-
175
176
INTERNATIONAL SUBJECTS
haustive discussion that treaty is about to be confirmed. In
the meantime the Senate by a great majority has approved
the recognition of independence by confirming the nomina-
tion of William I. Buchanan as minister from the United
States to Panama. The revolutionary leaders have sub-
mitted their action to the people of Panama, who have, by a
popular vote, given it their unanimous approval, and have
elected a constitutional convention, framed and adopted a
constitution, chosen a president and congress, and established
a republican government according to the forms which find
their model in the constitutions of our own country. In the
meantime, also, many other governments have followed the
United States in receiving the new republic into the family of
nations. On the eighteenth of November, five days after our
recognition, France recognized the republic of Panama; on
the twenty-second, China; on the twenty-seventh, Austria;
on the thirtieth, Germany; and following them Denmark,
Russia, Sweden and Norway, Belgium, Nicaragua, Peru,
Cuba, Great Britain, Italy, Switzerland, Costa Rica, Japan,
Guatemala, Netherlands, Venezuela, Portugal, in the order
named.
The independence of Panama, the grant to the United
States of the right to construct the canal across the Isthmus,
and the assumption by the United States of the duty to con-
struct the canal and to maintain it for the equal benefit of
mankind, are accomplished facts. Nothing can do away
with them, unless it be some future war of conquest waged
against the liberties of Panama, and at the same time against
the rights of the United States held in trust for the commerce
of the world.
The conduct of the United States Government in recogniz-
ing the independence of Panama, in making the treaty, and
in exercising police power over territory traversed by the
Panama Railroad and the partly-constructed canal, during
ETHICS OF THE PANAMA QUESTION
1777
the period of the revolution, has been severely criticised
by some of our own citizens, who have said, in substance,
that in this business our Government has violated the
rules of international law, has been grasping and unfair,
and has, by the exercise of brute force, trampled down the
rights of a weaker nation, in violation of those principles of
justice which should control the conduct of nations as of men.
In considering these charges we may well thrust aside as
carrying no weight of authority, the expressions of those who
while they condemn the conduct of our Government, are in
favor of the treaty. They curiously reverse the divine rule,
and seem to hate the sinner while they love the sin; and their
adverse criticism may fairly be ascribed to the exigencies of
the pending presidential campaign. Some of them may be
sincere, but upon that question they naturally invite the
comment made upon Lady Macbeth, that “she might be a
lady, but she did not show it by her conduct.”
We need not pay very much heed, either, to that class of
temperamental and perennial faultfinders whom we have
and always will have with us, as an incident of free institu-
tions, who are against every government of which they do
not personally form a part, and in whose eyes everything
done by others is wrong. This class of our citizens, with
slight changes in personnel, would have condemned any
course of conduct by our Government, whatever it was, and
their condemnation of the particular course followed merely
announces their existence.
Nevertheless, there remain good and sincere men and
women who have thought our course to be wrong, and many
others, whose character and patriotism entitle them to the
highest respect, are troubled in spirit. They would be glad
to be sure that our country is not justly chargeable with dis-
honorable conduct. May the time never come when such
men and women are wanting, or are constrained to remain
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INTERNATIONAL SUBJECTS
3
silent, in America. May the time never come when the con-
science of America shall cease to apply the rules of upright
conduct to national as well as to personal life; when our
Government feels absolved from the obligation to answer in
that forum for conformity to the rules of right or when
material advantage shall be held to excuse injustice. For if
such a time ever does come the beginning of the end of our
free institutions will have come also.
I wish to present some of the fundamental facts bearing
upon the question of right in the Panama business, although
they have been stated already better than I can state them,
with the hope that they may thus reach the attention of some
of the good and sincere citizens who are troubled about the
matter.
I am not going to discuss technical rules or precedents or
questions whether what was done should have been done a
little earlier or a little later, but the broad question whether
the thing we have done was just and fair.
It frequently happens in affairs of government that most
important rights are created, modified, or practically de-
stroyed by gradual processes, and by the indirect effect of
events; and that only an intimate knowledge of the process
enables one to realize the change until some practical ques-
tion arises which requires every one interested to study the
subject. If the typical New Zealander, ignorant of our poli-
tical history, were to read our Constitution and laws, he
would suppose that a presidential elector in the United
States is entitled to exercise freedom of choice in his vote for
President, and he would be quite certain that we were guilty
of gross injustice in the treatment which we should certainly
accord to an elector who voted for any one but the candidate
of his own party. In forming this judgment, he would be
misled by the form and appearance of things which he found
upon the statute book, and would misjudge a people who
ETHICS OF THE PANAMA QUESTION
179
were acting in accordance with the substance and reality of
things as they knew them to be. In the same way, they are
in error who assume that the relations of Colombia to the
other nations of the earth as regards the Isthmus of Panama
were, in truth, of unqualified sovereignty and right of do-
mestic control according to her own will, governed and pro-
tected by the rules of international law, which describe the
attributes of complete sovereignty; that the relations of
Colombia to the people of Panama were, in truth, those ap-
pearing in the written instrument called the Constitution of
Colombia; or that the rights and duties of the United
States in regard to the Isthmus were confined to the simple
duty of aiding Colombia to maintain her control over the
Isthmus, and the simple right to ask from Colombia privi-
leges which that country was entitled to grant or withhold
at her own pleasure.
The stupendous fact that has dominated the history and
must control the future of the Isthmus of Panama is the
possibility of communication between the two oceans. It is
possible for human hands to pierce the narrow forty miles
of solid earth which separate the Caribbean from the Bay of
Panama, to realize the dreams of the early navigators,
to make the pathway to the Orient they vainly sought, to
relieve commerce from the toils and perils of its nine thou-
sand miles of navigation around Cape Horn through stormy
seas and along dangerous coasts with its constant burden of
wasted effort and shipwreck and loss of life, and to push
forward by a mighty impulse that intercommunication be-
tween the distant nations of the earth which is doing away
with misunderstanding, with race prejudice and bigotry, with
ignorance of human rights and opportunity for oppression,
and making all the world kin.
Throughout the centuries since Philip II sat upon the
throne of Spain, merchants and statesmen and humanitarians
1
180
INTERNATIONAL SUBJECTS
and the intelligent masses of the civilized world have looked
forward to this consummation with just anticipations of
benefit to mankind. No savage tribes who happened to dwell
upon the Isthmus would have been permitted to bar this
pathway of civilization. By the universal practice and con-
sent of mankind they would have been swept aside without
hesitation. No Spanish sovereign could, by discovery or
conquest or occupation, preëmpt for himself the exclusive
use of this little spot upon the surface of the earth dedicated
by nature to the use of all mankind. No civil society or-
ganized upon the ruins of Spanish dominion could justly
arrogate to itself over this tract of land sovereignty unquali-
fied by the world's easement and all the rights necessary to
make that easement effective. The formal rules of interna-
tional law are but declarations of what is just and right in the
generality of cases. But where the application of such a
general rule would impair the just rights or imperil the exis-
tence of neighboring states or would unduly threaten the
peace of a continent or would injuriously affect the general
interests of mankind, it has always been the practice of
civilized nations to deny the application of the formal rule
and compel conformity to the principles of justice upon which
all rules depend. The Danubian principalities and Greece
and Crete, and Egypt, the passage of the Dardanelles, and
the neutralization of the Black Sea are familiar examples of
limitations in derogation of those general rules of inter-
national law which describe the sovereignty of nations.
The Monroe Doctrine itself, upon which we stand so firmly,
is an assertion of our right for our own interest to interfere
with the action of every other nation in those parts of this
hemisphere where others are sovereign and where we have no
sovereignty or claim of sovereignty, and to say if you do
thus and so, even by the consent of the sovereign, we shall
regard it as an unfriendly act because it will affect us in-
ETHICS OF THE PANAMA QUESTION
181
juriously. It is said that the Monroe Doctrine is not a rule of
international law. It is not a rule at all. It is an assertion of
a right under the universal rule that all sovereignty is held
subject to limitations in its exercise arising from the just
interests of other nations.
By the rules of right and justice universally recognized
among men and which are the law of nations, the sovereignty
of Colombia over the Isthmus of Panama was qualified and
limited by the right of the other civilized nations of the
earth to have the canal constructed across the Isthmus
and to have it maintained for their free and unobstructed
passage.
Colombia and her predecessor, New Granada, have not
failed at times to recognize their position. In 1846 New
Granada, through her secretary of foreign relations, Mr. Mal-
larino, applied to the Government of the United States to
enter into a treaty which should protect that country against
the seizure of the Isthmus by other foreign powers. In
effect, she acknowledged the right of way and asked the
United States to become the trustee of that right which
qualified her sovereignty, to maintain it for the equal benefit
of all nations, and at the same time to protect her against its
exercise by them in such a manner as to destroy her sov-
ereignty altogether. After describing acts which he con-
ceived to be undue encroachments by Great Britain in
South America, Mallarino said:
And if the usurpation of the Isthmus in its channelizable portion should
be added to these encroachments, the empire of American commerce in its
strictly useful or mercantile sense would fall into the hands of the only
nation that the United States can consider as a badly disposed rival. It
would be perfectly superfluous to mention the political consequences that
would be entailed upon America. This dominion or ascendancy would be
equally ruinous to the commerce of the United States and to the nation-
ality of the Spanish-American republics, most direful for the causes of
democracy in the New World, and a constant cause of disturbance of the
public peace in this our continent.
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INTERNATIONAL SUBJECTS
From these facts and general considerations may be inferred the urgent
necessity in which the United States are of interposing their moral in-
fluence, and even their material strength, between the weakness of the new
republics and the ambitious views of the commercial nations of Europe.
This end is simply and naturally to be obtained by stipulating in
favor of the United States a total repeal of the differential duties as a com-
pensation for the obligation they imposed upon themselves of guaranteeing
the legitimate and complete or integral possession of those portions of
territory that the universal mercantile interests require to be free and open
to all nations. ... When a treaty containing such a stipulation shall
exist between New Granada and the United States and it could be com-
pleted and perfected by a subsequent and supplementary convention, in
which the transit of the interoceanic passage should be arranged and its
permanent neutrality confirmed, half the plans of Great Britain would of
themselves fail and it would no longer be possible for her to encroach
upon the Isthmus.
He said he assumed that the United States would in the
proposed treaty
guarantee to New Granada the Isthmus or at least as much of it as was
required for the construction of a canal or railroad upon the most favorable
route; and moreover that it was important that this guaranty should
appear in the treaty as a condition for the right of way and the abolition
of the discriminating differential duties, otherwise New Granada would be
obliged to grant the same privileges unconditionally to England.
And he appealed to the declaration of the Monroe Doctrine,
reiterated by President Polk to the Congress of 1845–46, as
the basis of his request.
Upon this appeal, the treaty of December 12, 1846, be-
tween the United States and New Granada, was made and
signed in behalf of Colombia by the secretary, Mallarino,
whose words I have quoted. The thirty-fifth article of the
treaty contained the following provision:
The Government of New Granada guarantees to the Government of
the United States that the right of way or transit across the Isthmus of
Panama upon any modes of communication that now exist, or that may be
hereafter constructed, shall be open and free to the Government and citi-
zens of the United States. And in order to secure to themselves the
tranquil and constant enjoyment of these advantages, and as an especial
.
ETHICS OF THE PANAMA QUESTION
183
compensation for the said advantages and for the favors they have ac-
quired by the fourth, fifth, and sixth articles of this treaty, the United
States guarantee positively and efficaciously to New Granada by the
present stipulation the perfect neutrality of the before-mentioned Isthmus
with the view that the free transit from the one to the other sea may not be
interrupted or embarrassed in any future time while this treaty exists, and
in consequence the United States also guarantee in the same manner the
rights of sovereignty and property which New Granada has and possesses
over the said territory.
In transmitting this treaty to the Senate on February 10,
1847, President Polk made these observations:
1. The treaty does not propose to guarantee a territory to a foreign
nation in which the United States will have no common interest with that
nation. On the contrary, we are more deeply and directly interested in the
subject of this guaranty than New Granada herself or any other country.
2. The guaranty does not extend to the territories of New Granada
generally, but is confined to the single province of the Isthmus of Panama,
where we shall acquire, by the treaty, a common and coextensive right of
passage with herself.
3. It will constitute no alliance for any political object, but for a purely
commercial purpose in which all the navigating nations of the world have
a common interest.
You will perceive that in this transaction New Granada
recognized the subordination of her sovereignty to the world's
easement of passage by railroad or by canal, and, apprehend-
ing that other nations might seek to exercise that right
through the destruction of her sovereignty and the appro-
priation of her territory, she procured the United States to
assume the responsibility of protecting her against such
treatment. The United States assumed that burden and by
way of consideration
First. The United States received an express grant of the
right of way which President Polk described as constituting
common and coextensive right of passage with New
Granada herself,” and as making the United States “ more
deeply and directly interested in the subject of this guaranty
than New Granada herself or any other country.”
a
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INTERNATIONAL SUBJECTS
Second. The United States received a grant of power and
assumed a duty herself to keep the transit free and uninter-
rupted and unembarrassed, and to keep the territory of the
transit neutral.
The duties assumed by the United States to maintain
neutrality and free passage were undertaken for the benefit
of all the world. The right to maintain free passage was,
however, not merely for the general benefit, but was specifi-
cally declared to be “in order to secure to themselves (the
United States) the tranquil and constant enjoyment” of the
right of way. The United States assumed the burden of
protecting New Granada against an unjust exercise of the
world's right of passage. She assumed the correlative duty
of safeguarding the just exercise of the world's right of pas-
sage, and she acquired for herself a specific grant of the right
of way and the power to exercise for her own benefit in that
territory the functions of sovereignty which were necessary for
the peaceable enjoyment of the interest thus acquired by her.
Both countries have agreed in the construction that this
treaty imposed upon the United States no duty toward Col-
ombia to help her put down domestic insurrection. With
that form of assault upon the sovereignty of Colombia the
United States has had no concern, except when it tended
to interfere with free transit, and then the action of the
United States has been, not in the exercise of a duty toward
Colombia, but in protection of her own rights.
Throughout the half-century past since the treaty was
made, the United States has been faithful to her obligations.
The distinct announcement of her protection and her con-
stantly increasing power have been an adequate barrier
against foreign aggression upon the Isthmus. In all the long
and monotonous series of revolutions and rebellions in which
Colombia from the beginning showed herself wholly incap-
able of maintaining order, United States sailors and marines
ETHICS OF THE PANAMA QUESTION
185
have policed the railroad, its terminal cities and its harbors -
sometimes by Colombia's request and sometimes without
it - prohibiting action sometimes by the forces of the party
in
power
and sometimes by the forces of the party out of
power, but always enforcing peace upon the line of transit.
In a long and unbroken series of formal binding official
declarations by nearly every administration for more than
half a century, we have committed our country as a matter
of traditional policy to the execution of the trust to protect
and control the passage of the Isthmus for the equal uses of
all nations.
It will be observed that one effect of the treaty of 1846 was
that foreign powers were to be excluded from the opportunity
to construct the canal themselves. It followed from this
that if private enterprise should fail to build the canal, the
United States assumed the obligation to build it herself. We
could not play dog in the manger on the Isthmus. We could
not refuse to permit the work to be done by any one else com-
petent to do it and refuse the burden ourselves. The obliga-
tion of the United States to build the canal and the obligation
of Colombia to permit her to build it, both followed neces-
sarily from the relations and obligations assumed by them in
the treaty of 1846.
Private enterprise has failed to build the canal. The great
French company organized by De Lesseps, after spending and
wasting an incredible amount of treasure and after the
sacrifice of thousands of lives, has abandoned hope of com-
pleting the undertaking. No private company again will
grapple with the colossal enterprise. Other nations are ex-
cluded from the attempt by the force of our agreement with
Colombia. If the canal is to be built, we must build it.
The United States has answered to that obligation. Again
upon the request of Colombia, she entered upon the negotia-
tion of the further treaty described by the Granadian secre-
186
INTERNATIONAL SUBJECTS
tary, Mallarino, in 1846 as a subsequent and supplementary
convention, in which the transit of the interoceanic passage
should be arranged and its permanent neutrality confirmed."
Colombia stood to profit more by the building of that canal
than any other nation upon earth. Her territory stretching
across the northwestern end of South America was without
internal communication or unity. Her principal towns upon
her Atlantic and her Pacific coasts were separated by ranges
of lofty mountains not traversed by any railroad, and for the
most part without roads of any kind. The building of a canal
would, for the first time, establish practical and easy com-
munication between her different provinces. The work of
construction would bring enormous sums to be expended in
her territory, and the operation of the canal would set Colom-
bia upon a great highway of the world's commerce with
incalculable opportunities for development and wealth. She
had acknowledged the world's right to the canal. She had
specifically granted the right of way to the United States.
She had induced the United States to assume the moral
obligation for its construction by excluding all other nations
from the Isthmus for her protection. When she came to
settle the terms of this “supplementary convention,” the
detailed arrangements under which this enormous benefit
might be conferred upon mankind, and especially upon
herself, she demanded to be paid.
Reluctantly, and with a sense that it was an unjust exac-
tion, the United States agreed to pay ten million dollars
down and two hundred and fifty thousand dollars per annum
in perpetuity substantially the entire amount exacted by
Colombia. We were not going into the enterprise to make
money, but for the common good. We did not expect the
revenues of the canal to repay its cost, or to receive any
benefit from it, except that which Colombia would share to a
higher degree than ourselves. Against the hundreds of mil-
ETHICS OF THE PANAMA QUESTION
187
lions which we were obligating ourselves to expend, Colombia
was expected only to permit the use of a small tract of other-
wise worthless land already, in substance, devoted to that
purpose. We were not seeking a privilege which Colombia
was entitled to withhold but settling the method in which the
acknowledged right of mankind over a portion of her soil
should be exercised, with due regard to her special interests.
It was not just that we should pay anything, but it was better
to pay than to coerce a weaker nation. The treaty was rati-
fied by the Senate, and forwarded to Bogota. At the same
time we arranged that upon the final ratification of the treaty
we should pay to the Panama Canal Company, forty million
dollars, the entire appraised value of its work upon the canal,
in which it had expended nearly two hundred million dollars.
The concessions made in the treaty to the Government of
Colombia, however, seemed merely to inspire in that Govern-
ment a belief that there was no limit to the exactions which
they could successfully impose. They demanded a further
ten million dollars from the Panama Canal Company, and
upon its refusal, they rejected the treaty.
This rejection was a substantial refusal to permit the canal
to be built. It appears that the refusal contemplated not
merely further exactions from us but the spoliation of the
canal company.
That company's current franchise was
limited by its terms to October 31, 1904. There was an ex-
tension for six years granted by the President and for which
the company had paid five million francs. These patriots
proposed to declare the extension void and the franchise
ended and to confiscate the forty million dollars worth of
property of the company and take from the United States
for themselves, in payment for it, the forty million dollars we
had agreed to pay the company. The report of the com-
mittee on which the Colombian senate acted, contained the
following:
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INTERNATIONAL SUBJECTS
By the thirty-first of October of next year that is to say, when the
next congress shall have met in ordinary session the extension will have
expired, and every privilege with it. In that case, the republic will be-
come the possessor and owner, without any need of a previous judicial
decision and without any indemnity, of the canal itself, and of the adjuncts
that belong to it, according to the contracts of 1878 and 1900.
When that time arrives the republic, without any impediment, will be
able to contract and will be in more clear, more definite, and more advan-
tageous possession, both legally and materially. The authorizations which
would then be given by the next congress would be very different from
those that would be given by the present one.
By becoming a party to this scheme, we might indeed have
looked forward to the time when the appetite of Colombia
being satisfied at the expense of the unfortunate stockholders
of the French Company, we could proceed with the work;
but such a course was too repugnant to the sense of justice
that obtains in every civilized community to be for a moment
contemplated. We had yielded to the last point, beyond
reason and justice, in agreeing to pay for a privilege to which
we were already entitled and we could not, with self-respect,
submit to be mulcted further. We could negotiate no further.
Rejection of the treaty was practically a veto of the canal.
Every effort was made to bring Colombia to a realization of
what it was that she was doing; the effort was in vain, and on
the thirty-first of October, when the Colombian Congress
adjourned, the inchoate treaty had expired by limitation.
The questions presented to the United States by this
rejection were of the gravest importance. Lewis Cass,
Secretary of State, said in 1858:
The progress of events has rendered the interoceanic route across the
narrow portion of Central America vastly important to the commercial
world, and especially to the United States, whose possessions extend along
the Atlantic and the Pacific coasts, and demand the speediest and easiest
modes of communication. While the rights of sovereignty of the States
occupying this region should always be respected, we shall expect that
these rights be exercised in a spirit befitting the occasion and the wants and
circumstances that have arisen. Sovereignty has its duties as well as its
ETHICS OF THE PANAMA QUESTION
189
rights, and none of these local governments, even if administered with
more regard to the just demands of other nations than they have been,
would be permitted in a spirit of Eastern isolation to close the gates of
intercourse on the great highways of the world and justify the act by the
pretention that these avenues of trade and travel belong to them and that
they choose to shut them, or what is almost equivalent, to encumber
them with such unjust relations as would prevent their general use.
The time had apparently come to stand upon this declara-
tion or abandon the canal. The question was, should we sub-
mit to be deprived of the canal at the will of Colombia, whose
sovereignty was justly subject to the world's right of passage?
Should we continue to maintain upon the Isthmus that
feeble sovereignty whose existence had depended for half a
century upon our protection, in order that it might still bar
the way of the world's progress and the exercise of our just
rights ? Should we prepare to protect that sovereignty in its
scheme of spoliation, against the justly indignant protests of
France surely coming to the support of the stockholders of
the French Canal Company ? Or, should we say to Colom-
bia, you have no right to prevent the construction of this
canal; you are bound to consent to it upon reasonable
terms; by your request we have assumed a position in which
we are bound to build it for the use of the nations and
in which we are entitled to build it for our own interest;
and we shall now proceed to build it with due regard for
your interests, whether you agree upon the terms and con-
ditions or not.
I think that Secretary Cass answered the question forty-
five years ago. In Europe a concert of the Powers would
have made short work of the question. In Central America
they would have made short work of it but for the Monroe
Doctrine, to which New Granada appealed, and the pro-
tection which we guaranteed to her under the treaty of
1846. By the assertion of that doctrine and the engage-
ments of that treaty we took the responsibility upon
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INTERNATIONAL SUBJECTS
ourselves alone, to do for civilization what otherwise all the
maritime powers would have united in requiring; it was
for us alone to act; and I have no question that our right
and duty were to build the canal, with or without the consent
of Colombia.
These were the conditions existing when the revolution of
the third of November happened. To an understanding of
that revolution a knowledge of the character and history
of Panama is essential. Some uninformed persons have as-
sumed that it was merely a number of individual citizens of
Colombia living in the neighborhood of the proposed canal
who combined to take possession of that part of Colombian
territory and set up a government of their own. No con-
ception could be more inadequate. The sovereign state of
Panama was an organized civil society possessed of a terri-
tory extending over four hundred miles in length from Costa
Rica on the west to the mainland of South America on the
east. It had a population of over three hundred thousand
the greater part of whom lived in the western part of the
country, toward Costa Rica, and farthest removed from
South America. Between the inhabited part of this territory
and the inhabited part of Colombia, stretched hundreds of
miles of tropical forest so dense as to be impassable by the
ordinary traveler, so that there was no communication by
land between the two countries. The only intercourse was
by long sea voyages, as if Panama were a distant island; and
the journey from the Isthmus to the capital of Colombia was
longer in time than from the Isthmus to Washington.
Panama was not an original part of Colombia, or of New
Granada, but obtained its own independence from Spain and
established its own government in November, 1821, and
thereafter voluntarily entered the Granadian Confederation.
When that confederation was broken up into Venezuela,
Ecuador, and New Granada in 1832, Panama remained with
ETHICS OF THE PANAMA QUESTION
191
New Granada, and so continued until the year 1840, when
she again became independent and remained a separate
sovereignty until 1842. She then returned to New Granada
and remained a part of that country until 1855, when by
amendment to the constitution these provisions went into
effect:
ARTICLE 1. The territory which comprises the provinces of the Isthmus
of Panama, to wit, Panama, Ezuero, Veraguas, and Chiriqui, form a
sovereign, federal integral part of New Granada under the name of the
State of Panama.
ART. 3. The State of Panama is subject to that of New Granada in the
matters which are here mentioned:
1. All matters concerning foreign relations;
2. Organization and service of the regular army and of the marines;
3. Federal finances;
4. Naturalization of foreigners;
5. Official weights, balances, and measures.
ART. 4. In all other matters of legislation and administration, the State
of Panama shall legislate freely in the manner it considers proper in accord-
ance with the rules of practice of its own constitution.
Since that time, now nearly fifty years ago, the state of
Panama has never voluntarily surrendered her sovereignty.
In 1858, in 1860 and 1861, new confederations were formed
in which Panama became a contracting party. In 1863 a
new constitution was formed, the first two articles of which
were as follows:
ARTICLE 1. The sovereign States of Antioquia, Bolivar, Boyaca, Cauca,
Cundinamarca, Magdalena, Panama, Santander, and Tolima, created,
respectively, by the acts of February 27, 1855, June 11, 1856, May 13,
1857, June 15 of the same year.-April 12, 1861, and September 3 of the
same year, unite and confederate forever, consulting their external security
and reciprocal aid, and form a free, sovereign, and independent nation
under the name of the “United States of Colombia."
ART. 2. The said States engage to aid and defend themselves mutually
against all violence that may injure the sovereignty of the Union or that of
the States.
This constitution undertook to distribute general and local
powers between the federal and the state governments upon
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INTERNATIONAL SUBJECTS
the principles followed in the Constitution of the United
States. But it provided:
ART. 25. Every act of the National Congress or of the executive power
of the United States, which shall violate the rights warranted in the
fifteenth article, or attack the sovereignty of the States, shall be liable to
abrogation by the vote of the latter expressed by the majority of their
respective legislatures.
And it provided that it could be amended only in the fol-
lowing manner:
1. That the amendments be solicited by the majority of the legislatures
of the States;
2. That the amendments be discussed and approved in both houses,
ccording to what has been established for the enactment of laws; and
3. That the amendments be ratified by the unanimous votes of the
senate of plenipotentiaries, each State having one vote.
It may also be amended by a convention called therefor by the Congress
on the application of the whole of the legislatures of the States and com-
posed of an equal number of deputies from each State.
acc
Under this constitution Mr. King, the American minister
at Bogota, reported to the Secretary of State at Washington:
The States comprising the Union were vested with absolute and un-
qualified sovereignty. From them emanated all authority, and without
their assent none could be exercised by the Federal functionaries of the
nation.
Under that constitution the sovereign state of Panama
lived in confederation with the other states of Colombia for
twenty-three years, until the year 1886. She never legally
lost her rights under that constitution, but she was deprived
of them in fact by force in the manner which I shall now
describe.
In the year 1885 Rafael Nunez, having been elected
President of the Confederation of Colombia under the Con-
stitution of 1863, undertook to govern in disregard of con-
stitutional limitations, and was resisted in many parts of
Colombia, including Panama. The resistance was over-
come, and when that was accomplished Nunez declared "the
ETHICS OF THE PANAMA QUESTION
193
constitution of 1863 no longer exists." He put Panama under
martial law, not during the civil war, but after its close, and
appointed a governor of the state. He also appointed gover-
nors for the other states in the confederation. He then
directed these governors to appoint delegates to a constitu-
tional convention; and the delegates thus appointed framed
what is known as the constitution of 1886. The two delegates
appointed to represent Panama in this convention were
residents of Bogota. Neither of them had ever resided in
Panama, and one of them never had set foot in Panama. The
pretended constitution thus framed by the appointees of
Nunez was declared to be adopted without compliance with
a single one of the requisites prescribed by the constitution of
1863 for its amendment. It robbed the people of Panama
of every vestige of self-government. It gave them a governor
to be appointed by the president at Bogota, and he, in turn,
appointed all the administrative officers of the department.
It left to the other states their legislatures, but it took away
from Panama its legislature and subjected the Isthmus
directly in all things to the legislative authority of the Con-
gress at Bogota. It provided that the president might at any
time, in case of civil commotion, declare the public order to
be disturbed, and that he should thereupon have authority
to issue decrees having the force of legislative enactments.
It gave him absolute power over the press and power to
imprison or expatriate any citizen at will. It took away the
property, the powers, the corporate existence, the civil
organization of the state, and placed the property and the
lives of its people absolutely under the authority and power
of a single dictator in a distant capital with which there was
no communication by land, and which it required longer to
reach than it did to reach the city of Washington. This
pretended constitution was never submitted to the people
of Panama for their approval or rejection. It was never
194
INTERNATIONAL SUBJECTS
consented to by them. Our minister at Bogota, Mr. King,
closed his dispatch describing the new instrument with these
words:
No generous mind can contemplate the disasters which have befallen
this people, or meditate on the ills that may flow from their reckless experi-
ment of violent political change, without feeling a deep sorrow for the
pains endured by a weak and long-suffering race, who mourn the destruc-
tion of their chartered rights as the loss of a cherished freedom that must be
recovered at the cost of every peril.
In an address made by President Nunez to this convention
of his own appointees he indicated clearly the way in which
he proposed to make the new constitution effective in
Panama. He said:
To what has been stated is added the necessity of maintaining for some
time a strong army which shall serve as a material support to the acclima-
tization of peace which cannot be produced instantaneously by a system of
government little in harmony with the defective habits acquired in so
many years of error. The state of Panama alone requires a large and well-
paid garrison, in order that acts may not again occur endangering our
sovereignty; without such precaution excluding the most certain one,
which is the prudent cultivation of our relations with the North American
Government, which has just given us clear evidence of its good faith.
The evidence of good faith to which he referred was that our
armed forces had just turned the Isthmus over from the con-
trol of the troops of Panama to the control of the troops of
Nunez; and the meaning was that he intended to hold the
people of Panama subject by force of arms and the aid of
the United States.
In May, 1886, our consul at Panama reported to the State
Department:
The people of the Isthmus are ground down by excessive taxation, and
they fear to acquire property lest they shall not only be robbed by the tax
gatherers but also imprisoned to cloak the robbery under a false charge.
At the present time the revenue derived from the cities of Panama and
Colon and intermediary villages is at the rate of $1,000,000 a year. Not
one tenth of this revenue is spent for the benefit of the people. It is used
to keep the forces to keep them in subjection.
ETHICS OF THE PANAMA QUESTION
195
On December 24, 1886, four months after the promulgation
of the constitution, he reported:
Three fourths of the people of this Isthmus desire separation and
the independence of the extinguished state of Panama. They feel but
little more affection for the Governor at Panama than the Poles did
forty years ago for their masters at St. Petersburg. They would revolt
if they could get arms and if they felt that the United States would not
interfere.
A signed article published in December last in the news-
paper El Relator of Bogota sums up the story of oppression
and spoliation under which the people of Panama have
suffered during these recent years. The facts which the
writer states appear also spread at large in numerous reports
upon the files of our State Department. He says:
When the Isthmus in 1821 had sealed its independence and had in-
corporated itself spontaneously to great Colombia, undoubtedly it had the
conviction that we would not annul its rights and its liberty as a nation;
it thought that we would always respect the integrity of its own govern-
ment. Whether we have betrayed or not the confidence that the Isth-
mians had in our country, the history of the last twenty years and the
work of inequity and spoiling realized in Panama will answer.
We have converted the lords and masters of that territory into pariahs
of their native soils. We have cut off their rights and suppressed all their
liberties unexpectedly. We have robbed them of the most precious
faculty of a free people - that of electing their mandataries; their
legislators, their judges.
We have restricted for them the right of suffrage; we have falsified the
count of votes; we have made prevalent over the popular will the will of a
mercenary soldiery and that of a series of employees entirely strange to the
interests of the department; we have taken away from them the right of
law-making, and as a compensation we have put them under the iron yoke
of exceptional laws; state, provinces, and municipalities have lost entirely
the autonomy which they were enjoying formerly.
In towns of a cosmopolitan character on the Isthmus, we did not found
any national schools where children could learn our religion, our language,
our history, and how to love their country. In the face of the world, we
have punished with imprisonment, with expulsion, with fines, and whip-
pings the writers for the innocent expression of their thought. From
December, 1884, to October, 1903, the presidents, governors, secretaries,
prefects, mayors, chiefs of police, military chiefs, officials, and soldiers,
196
INTERNATIONAL SUBJECTS
inspectors of police, the police itself, captains and surgeons of harbors,
magistrates, judges of all descriptions, state attorneys - everybody came
from the high plains of the Andes and from other parts of the republic to
impose on the Isthmus the will, the law, or the whims of the more power-
ful, to sell justice or speculate with the treasury. This series of employees,
similar to an octopus with its multiple arms, was sucking the blood of an
oppressed people and was devouring what only the Panamans had right to
devour. We have made of the Isthmus a real military province, and when
this nation of three hundred and fifty thousand souls had men of conti-
nental reputation like Justo Arosemana; legislators of the first order and
of an irresistible popularity like Pablo Arosemana and like Gil Colunje;
men of talent like Ardila; brilliant diplomats like Hurtado; and scientific
celebrities of European reputation like Sosa, we leave them aside, we
relegate them in contempt and in forgetfulness instead of putting them at
the head of the Isthmus, in order to quench the thirst of equity and justice
and satisfy the legitimate aspirations of all the Panamans. Such a way of
proceeding has wounded the pride, the dignity, and the patriotism of all
the intellectual people of the Isthmus, and has provoked and developed the
hatred and the anger of the popular mass.
The people of Panama fought to exhaustion in 1885 to
prevent the loss of their liberty and they were defeated
through the action of the naval forces of the United States.
Three times since then they have risen in rebellion against
their oppressors.
In 1895 they arose and were suppressed by force; in 1899
they arose again and for three years maintained a war for
liberation, which ended in 1902 through the interposition of
the United States by armed force. The rising of November,
1903, was the fourth attempt of this people to regain the
rights of which they had been deprived by the usurpation of
Nunez. The rejection of the canal treaty by the Bogota
Congress was the final and overwhelming injury to the in-
terests of Panama; the conclusive evidence of indifference
to her welfare and disregard of her wishes; and it also created
the opportunity for success in her persistent purpose to regain
civil liberty; for it was plain that under the strained relations
created by that rejection, the United States naturally would
ETHICS OF THE PANAMA QUESTION
197
not exercise her authority again upon the Isthmus, as she
had exercised it before, to aid the troops of Colombia. She
was under no obligation to do so, and she could not do so
without aiding in the denial of her own rights and the destruc-
tion of her own interests. Upon that the people of Panama
relied in their last attempt, and they relied upon it with
reason.
وو
In the meantime there had been a curious grafting of
usurpation upon usurpation at Bogota. In 1898 M. A. San-
clamente was elected president, and J. M. Maroquin, vice-
president, of the republic of Colombia. It is true that there
was no freedom of election. Our minister had reported of a
preceding election: “None but the soldiers, police, and em-
ployees of the Government voted, thus making the victory
of the Government complete ”; but there was a form of
election, and Sanclamente became the only president there
was, and Maroquin the vice-president. Article twenty-four
of the constitution of 1886 provided:
The vice-president of the republic shall perform the duties of the exec-
utive office during the temporary absence of the president. In case of the
permanent absence of the president, the vice-president shall occupy the
office of the president during the balance of the time for which he was
elected.
On July 31, 1900, the vice-president, Maroquin, executed
a coup d'état by seizing the person of the president, Sancla-
mente, and imprisoning him at a place a few miles outside of
Bogota. Maroquin thereupon declared himself possessed of
the executive power because of the absence of the president.
He then issued a decree that public order was disturbed, and,
upon that ground, assumed to himself legislative power under
another provision of the constitution which I have already
cited. Thenceforth, Maroquin, without the aid of any legis-
lative body, ruled as the supreme executive, legislative, civil,
and military authority in the so-called republic of Colombia.
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INTERNATIONAL SUBJECTS
The absence of Sanclamente from the capital became perma-
nent by his death in prison in the year 1902. When the
people of Panama declared their independence in November
last, no Congress had sat in Colombia since the year 1898,
except the special Congress called by Maroquin to reject the
canal treaty, and which did reject it by a unanimous vote,
and adjourned without legislating on any other subject. The
constitution of 1886 had taken away from Panama the power
of self-government and vested it in Colombia. The coup
d'état of Maroquin took away from Colombia herself the
power of government and vested it in an irresponsible
dictator.
The true nature of the government against which Panama
rebelled is plainly shown by the proposals to the United
States by the Bogota government upon receipt of the first
news of the revolution. On the sixth of November the United
States minister at Bogota, Mr. Beaupré, telegraphed to
Mr. Hay:
Knowing that the revolution has already commenced in Panama, Gen-
eral Reyes says that if the Government of the United States will land
troops to preserve Colombian sovereignty and the transit of the Isthmus,
if requested by the chargé d'affaires of Colombia, this Government will
declare martial law and by virtue of vested constitutional authority, when
public order is disturbed, will approve by decree the ratification of the
canal treaty as signed; or, if the Government of the United States prefers,
will call an extra session of Congress with new and friendly members next
May, to approve the treaty.
1
On the seventh of November Mr. Beaupré telegraphed to
Mr. Hay:
General Reyes leaves next Monday for Panama invested with full
powers. He has telegraphed chiefs of the insurrection that his mission is to
the interests of Isthmus. He wishes answer from you before leaving, to the
inquiry in my telegram of yesterday, and wishes to know if the American
commander will be ordered to coöperate with him and with new Panama
government to arrange peace and the approval of Canal Treaty, which
will be accepted on condition that the integrity of Colombia be preserved.
ETHICS OF THE PANAMA QUESTION
199
He has telegraphed President of Mexico to ask the Government of the
United States and all the countries represented at the Pan-American Con-
erence to aid Colombia to preserve her integrity. The question of the
approval of the treaty mentioned in my telegram yesterday will be ar-
ranged in Panama; he asks that before taking definite action you will
await his arrival there, and that the Government of the United States in
the meantime preserve the neutrality and transit of the Isthmus, and do
not recognize the new Government.
The General Reyes of these dispatches is now the presi-
dent-elect of Colombia. Upon reading them, who can fail to
see that there was no constitutional government in Colombia;
that no government of law protected the people of Panama
and their interests against the will of an arbitrary and foreign
power; that the deliberations and unanimous action of the
special Congress at Bogota had been a sham and a pretense;
that Panama's rights, that the rights of the United States,
that the world's rights to the passage of the Isthmus, had
been the subject of disingenuous juggling at the hands of
successful adventurers, and not of the fair expression of a
free nation's will.
When these dispatches were received the die was not cast
on the Isthmus; the United States had not recognized the
new republic of Panama; she had assumed no obligations
toward the leaders of the new movement or toward their
followers; Colombia and Panama then both held out to us
the offer of the right and opportunity to build the canal.
Colombia said, “ We will ratify the treaty - we will ratify
it by decree, or we will call a Congress selected for the pur-
pose of ratifying the treaty, as the preceding Congress was
selected for the purpose of rejecting it — if you will preserve
our integrity.” Panama said, “Recognize our independence,
and the treaty follows of course, for the building of the canal
is our dearest hope.” There was no question of interest on
the part of the United States; the treaty was secure; the
canal was secure; but there was a question of right, a ques-
200
INTERNATIONAL SUBJECTS
tion of justice, a question of national conscience to be dealt
with. What was the duty of the United States toward the
people of Panama and the dictator at Bogota ?
The people of Panama were the real owners of the canal
route; it was because their fathers dwelt in the land, be-
cause they won their independence from Spain, because they
organized a civil society there that it was not to be treated as
one of the waste places of the earth. They owned that part
of the earth's surface just as much as the state of New York
owns the Erie Canal. When the sovereign state of Panama
confederated itself with the other states of Colombia under
the constitution of 1863, it did not part with its title or its
substantial rights, but constituted the Federal Government
its trustee for the representation of its rights in all foreign
relations, and imposed upon that Government the duty of
protecting them. The trustee was faithless to its trust; it
repudiated its obligations without the consent of the true
owner; it seized by the strong hand of military power the
rights which it was bound to protect; Colombia herself broke
the bonds of union and destroyed the compact upon which
alone depended her right to represent the owner of the soil.
The question for the United States was: Shall we take this
treaty from the true owner or shall we take it from the faith-
less trustee, and for that purpose a third time put back the
yoke of foreign domination upon the neck of Panama, by the
request of that Government which has tried to play toward
us the part of the highwayman? There was no provision of
our treaty with Colombia which required us to answer to her
call, for our guaranty of her sovereignty in that treaty relates
solely to foreign aggression. There was no rule of interna-
tional law which required us to recognize the wrongs of
Panama or the justice of her cause, for international law does
not concern itself with the internal affairs of states. But I
put it to the conscience of the American people who are pass-
1
ETHICS OF THE PANAMA QUESTION
201
ing judgment upon the action of their Government, whether
the decision of our President and Secretary of State and the
Senate was not a righteous decision.
By all the principles of justice among men and among
nations that we have learned from our fathers, and that all
peoples and all governments should maintain, the revolu-
tionists in Panama were right, the people of Panama were
entitled to be free again, the Isthmus was theirs and they
were entitled to govern it; and it would have been a shame-
ful thing for the Government of the United States to return
them again to servitude.
It is hardly necessary to say now that our Government had
no part in devising, fomenting, or bringing about the revolu-
tion on the Isthmus of Panama. President Roosevelt said in
his message to Congress of January 4, 1904:
I hesitate to refer to the injurious insinuations which have been made
of complicity by this Government in the revolutionary movement in
Panama. They are as destitute of foundation as of propriety. The only
excuse for my mentioning them is the fear lest unthinking persons might
mistake for acquiescence the silence of mere self-respect. I think proper to
say, therefore, that no one connected with this Government had any part
in preparing, inciting, or encouraging the late revolution on the Isthmus of
Panama, and that save from the reports of our naval and military officers,
given above, no one connected with this Government had any previous
knowledge of the revolution except such as was accessible to any person of
ordinary intelligence who read the newspapers and kept up a current
acquaintance with public affairs.
The people of the United States, without distinction of
party, will give to that statement their unquestioning belief.
All the world knew that there would be a rising by the
people of Panama, if the Colombian Congress adjourned
without approving the treaty, as it did adjourn on the thirty-
first of October. The newspapers of the United States were
filled with statements to that effect, and our State and Navy
Departments could not fail to be aware of it. They took the
same steps they had always taken under similar circum-
1
202
INTERNATIONAL SUBJECTS
stances to have naval vessels present to keep the transit open
and protect American life and property. If any criticism is
to be made upon their course, it is that there was too little
rather than too much prevision and preparation. There was
no naval vessel of the United States at the city of Panama,
and there were no armed forces of the United States there
when the rising occurred. There was one small vessel at
Colon which was able to land a force of forty-two marines
and blue-jackets; that was the entire force which the United
States had on the Isthmus at the time of the revolution.
They were landed at Colon as our troops had many times
before been landed, and they were landed under these cir-
cumstances: On the morning of November third, the day of
the rising at Panama, about four hundred and fifty Colom-
bian troops landed at Colon and their two generals proceeded
by rail to the city of Panama, where they were arrested and
placed in confinement by the insurgents, who had been
joined by all the Colombian troops on the Isthmus except the
four hundred and fifty just landed, and who had a force of
fifteen hundred men under arms. On the morning of the
next day, the fourth of November, the remaining com-
mander of this body of Colombian troops in Colon sent a
notice to the American consul that if the officers who had
been arrested by the insurgents in Panama the evening
before were not released by two o'clock in the afternoon, he
would open fire on the town of Colon and kill every United
States citizen in the place. There was then no American
armed force of any description on the soil of the Isthmus.
The Nashville was in the harbor. The American consul ap-
pealed to the commander of the Nashville for protection, and
he landed the forty-two marines and blue-jackets. They took
possession of the shed of the Panama Railroad Company, a
stone building capable of defense, collected there the Ameri-
can men residing in Colon, sent the American women and
ETHICS OF THE PANAMA QUESTION
203
children on board a Panama Railroad steamer and a Ger-
man steamer which were lying at the dock, and prepared to
receive the threatened attack. The building was surrounded
by the Colombian troops, and for an hour and a half this
little force stood to its arms ready to fire and expecting to
receive the threatened and apparently intended attack of ten
times their number. Then cooler judgment prevailed with
the Colombian officers, and the tension was relieved. On
the following day a renewal of the threatening attitude of the
Colombian troops led to a reoccupation of the railroad shed
and a return of the women and children to the steamers; but
again the danger passed without conflict; and on the evening
of the second day, the fifth of November, after conferences
with the insurgent leaders, in which the American officers
took no part, the Colombian troops boarded a Colombian
ship and sailed away from the harbor of Colon, leaving no
Colombian force on the Isthmus. The commander of the
Nashville closes his report of these occurrences in these
words:
I beg to assure the Department that I had no part whatever in the nego-
tiations that were carried on between Colonel Torres and the representa-
tives of the provisional government; that I landed an armed force only
when the lives of American citizens were threatened, and withdrew this
force as soon as there seemed to be no ground for further apprehension of
injury to American lives and property; that I relanded an armed force
because of the failure of Colonel Torres to carry out his agreement to with-
draw and announced intention to return; and that my attitude throughout
was strictly neutral as between the two parties, my only purpose being to
protect the lives and property of American citizens and to preserve the
free and uninterrupted transit of the Isthmus.
Objection has been made that owing to American direc-
tion the Panama Railroad Company refused to transport the
four hundred and fifty Colombian soldiers to Panama to
attack the fifteen hundred insurgents in arms there, and
that the officers of the American Government were directed
to prevent any troops of either party from making the
204
INTERNATIONAL SUBJECTS
line of the railroad the theatre of hostilities; but this was no
new policy devised or applied for this occasion; and it was
impartial as to both parties to the controversy. The insur-
gents were anxious that the transportation should be given,
for they outnumbered the Colombians more than three to
one, and when it was refused they asked for transportation
for themselves to attack the Colombians in Colon, and that
was refused. The year before a communication had been
sent to the Commander of the Colombian forces and the
commander of the insurgent forces on the Isthmus in these
words:
U.S. S. Cincinnati, September 19, 1902.
DEAR SIR: – I have the honor to inform you that the United States
naval forces are guarding the railway trains and the line of transit across
the Isthmus of Panama from sea to sea, and that no persons whatever will
be allowed to obstruct, embarrass, or interfere in any manner with the
trains or the route of transit. No armed men except forces of the United
States will be allowed to come on or use the line.
All of this is without prejudice or any desire to interfere in domestic
contentions of the Colombians.
Please acknowledge receipt of this communication.
With assurances of high esteem and consideration, I remain,
Very respectfully,
T. C. McLEAN,
Commander, United States Navy, Commanding.
The policy embodied in this official notice of 1902 was the
same policy followed in November, 1903, and none other; it
was the outcome of the experience gained during the long
course of warfare and the painful experience of property
destroyed and traffic suspended, which showed that if the
rights of the United States on the Isthmus of Panama were
to be protected they must be protected by the United States
itself insisting that its right of way should not be made the
field of battle, as it had been in 1885, when Colon was burned
with the railroad terminals and wharves, when Panama was
captured, track was torn up, cars were broken open, telegraph
wires were cut and armored trains were a necessity. The
ETHICS OF THE PANAMA QUESTION
205
warrant for the execution of that policy is the right of self-
protection. The things done by our officers might not have
been permissible in the territory of a country of strong and
orderly government possessing and exercising the power to
prevent lawless violence and to protect the lives and property
of citizens and foreigners alike; but action of this character
is, according to the universal rules obtaining among civilized
nations, not only permissible, but a duty of the highest obli-
gation in countries whose feeble governments exercise im-
perfect control in their own territory and fail to perform the
duties of sovereignty for the protection of life and property.
The armed force of American sailors who during the past few
weeks have been protecting American life and property in the
friendly capital of Korea have not been making war upon
that power. The expeditionary force which marched to
Peking under Chaffee in the summer of 1900, and carrying
the capital of China by assault, rescued the residents of the
American legation, was not making war upon that nation,
which relies with just confidence upon our constant friend-
ship. In that category of incapacity to protect the rights
of others, Colombia has placed herself as to the Isthmus of
Panama by the record of the past years. She could not main-
tain order upon the Isthmus because she did not seek to
maintain justice; she could not command respect for her
laws because she had abandoned the rule of law and sub-
mitted to the control of an arbitrary dictator. The right of
self-protection for American interests rested upon these facts
emphasized and enforced by the grant of power in the treaty
of 1846, and by Colombia's own appeals to the American
Government to intervene for the maintenance of order.
It was not the neutral force of forty-two marines and blue-
jackets, or anything that the American Government or
American officers said or did, that led the four hundred and
fifty Colombians to retire from Colon; it was the fact that
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INTERNATIONAL SUBJECTS
they found themselves alone among a hostile and unanimous
people with an overwhelming insurgent force in arms against
them which left no alternative but capture or retreat. The
recognition of independence and the treaty with Panama are
the real grounds of Colombia's complaint, and upon the
justice of those acts America stands, fairly, openly, with full
disclosure of every step taken and every object sought.
Upon the firm foundation of that righteous action, with the
willing authority of the lawful owners of the soil, we will dig
the canal, not for selfish reasons, not for greed of gain, but
for the world's commerce, benefiting Colombia most of all.
We shall not get back the money we spend upon the canal
any more than we shall get back the money we have expended
to make Cuba a free and independent republic, or the money
we have expended to set the people of the Philippines on the
path of ordered liberty and competency for self-government.
But we shall promote our commerce, we shall unite our At-
lantic and Pacific coasts, we shall render inestimable service
to mankind, and we shall grow in greatness and honor and in
the strength that comes from difficult tasks accomplished
and from the exercise of the power that strives in the nature
of a great constructive people.
THE OBLIGATIONS OF THE UNITED STATES
AS TO PANAMA CANAL TOLLS
ADDRESS IN THE SENATE OF THE UNITED STATES
JANUARY 21, 1913
Chapter 390 of the laws of 1912, entitled “ An Act to provide for the opening,
maintenance, protection, and operation of the Panama Canal, and the sanitation
and government of the Canal Zone,” passed the Senate, August 9, 1912, and became
a law August 24, 1912. When the bill was before the Senate for final action, Mr.
Root moved to strike out the line in Section 5 providing that “ no tolls shall be
levied upon vessels engaged in the coastwise trade of the United States.” This
amendment was rejected without roll call, and the bill passed as originally reported:
yeas, 47; nays, 15; not voting, 32.
On December 11, 1912, Sir Edward Grey, Principal Secretary for Foreign Affairs
of Great Britain, formally protested to the United States against this provision of the
Panama law, as a violation of the terms of the Hay-Pauncefote Treaty between
Great Britain and the United States signed November 18, 1901, and proclaimed
February 22, 1902.
On January 14, 1913, Mr. Root introduced Senate Bill No. 8114, being in identi-
cal terms with his motion above referred to. On the same date he announced his
intention to speak upon the subject on January 21.
On March 5, 1914, President Wilson delivered a message to Congress in person
in which he said:
I have come to ask you for the repeal of that provision of the Panama Canal
Act of August 24, 1912, which exempts vessels engaged in the coastwise trade of
the United States from payment of tolls and to urge upon you the justice, the
wisdom, and the large policy of such a repeal with the utmost earnestness of
which I am capable.
In my own judgment, very fully considered and maturely formed, that
exemption constitutes a mistaken economic policy from every point of view,
and is, moreover, in plain contravention of the treaty with Great Britain con-
cerning the canal concluded on November 18, 1901. But I have not come to
urge upon you my personal views. I have come to state to you a fact and a
situation. Whatever may be our own differences of opinion concerning this
much-debated measure, its meaning is not debated outside the United States.
Everywhere else the language of the treaty is given but one interpretation, and
that interpretation precludes the exemption I am asking you to repeal. We
consented to the treaty; its language we accepted, if we did not originate; and
we are too big, too powerful, too self-respecting a nation to interpret with too
strained or refined a reading the words of our own promises just because we
have power enough to give us leave to read them as we please. The large thing
to do is the only thing that we can afford to do, a voluntary withdrawal from
a position everywhere questioned and misunderstood. We ought to reverse our
207
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INTERNATIONAL SUBJECTS
action without raising the question whether we were right or wrong, and so
once more deserve our reputation for generosity and for the redemption of
every obligation without quibble or hesitation. I ask this of you in support
of the foreign policy of the Administration.
The repealing bill was debated at length in both Houses of Congress and on
May 21, 1914, Mr. Root delivered his address entitled: “ Panama Canal Tolls:
Speech in Reply,” which is printed immediately following the address below.
Mr. T. W. Sims, of Tennessee, had meanwhile introduced in the House of Repre-
sentatives a bill to repeal the clause exempting American coastwise shipping from
the payment of tolls on the Panama Canal, which passed the House, March 31, 1914,
and passed the Senate, June 11, 1914, by the following vote: yeas, 50; nays, 35;
not voting, 10. It was approved June 15, 1914.
This repealing act is Public 1131, Sixty-third Congress, Second session.
MB
R. PRESIDENT, in the late days of last summer, after
nearly nine months of continuous session, Congress
enacted, in the bill to provide for the administration of the
Panama Canal, a provision making a discrimination between
the tolls to be charged upon foreign vessels and the tolls to be
charged upon American vessels engaged in coastwise trade.
We all must realize, as we look back, that when that provi-
sion was adopted the members of both Houses were much ex-
hausted; our minds were not working with their full vigor;
we were weary physically and mentally. Such discussion as
there was was to empty seats. In neither House of Congress,
during the period that this provision was under discussion,
could there be found more than a scant dozen or two of mem-
bers. The provision has been the cause of great regret to a
multitude of our fellow-citizens, whose good opinion we all
desire and whose leadership of opinion in the country makes
their approval of the course of our Congress an important
element in maintaining that confidence in government which
is so essential to its success. The provision has caused a pain-
ful impression throughout the world that the United States
has departed from its often-announced rule of equality of
opportunity in the use of the Panama Canal, and is seeking a
special advantage for itself in what is believed to be a viola-
tion of the obligations of a treaty. Mr. President, that
PANAMA CANAL TOLLS
209
opinion of the civilized world is something which we may not
lightly disregard. “A decent respect to the opinions of man-
kind” was one of the motives stated for the people of these
colonies in the great Declaration of American Independence.
The effect of the provision has thus been doubly unfortu-
nate, and I ask the Senate to listen to me while I endeavor to
state the situation in which we find ourselves; to state the
case which is made against the action that we have taken, in
order that I may present to the Senate the question whether
we should not either submit to an impartial tribunal the
question whether we are right, so that if we are right, we may
be vindicated in the eyes of all the world; or whether we
should not, by a repeal of the provision, retire from the
position which we have taken.
In the year 1850, Mr. President, there were two great
powers in possession of the North American Continent to the
north of the Rio Grande. The United States had but just
come to its full stature. By the Webster-Ashburton Treaty
of 1842 our northeastern boundary had been settled, leaving
to Great Britain that tremendous stretch of seacoast includ-
ing Nova Scotia, New Brunswick, Newfoundland, Labrador,
and the shores of the Gulf of St. Lawrence, now forming the
Province of Quebec. In 1846 the Oregon boundary had been
settled, assuring to the United States a title to that vast
region which now constitutes the states of Washington,
Oregon, and Idaho. In 1848 the treaty of Guadalupe-
Hidalgo had given to us that great empire wrested from
Mexico as a result of the Mexican War, which now spreads
along the coast of the Pacific as the state of California and
the great region between California and Texas.
Inspired by the manifest requirements of this new empire,
the United States turned its attention to the possibility of
realizing the dream of centuries and connecting its two coasts
- its old coast upon the Atlantic and its new coast upon the
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INTERNATIONAL SUBJECTS
Pacific by a ship canal through the Isthmus; but when it
turned its attention in that direction it found the other em-
pire holding the place of advantage. Great Britain had also
her coast upon the Atlantic and her coast upon the Pacific,
to be joined by a canal. Further than that, Great Britain
was a Caribbean power. She had Bermuda and the Baha-
mas; she had Jamaica and Trinidad; she had the Windward
Islands and the Leeward Islands; she had British Guiana
and British Honduras; she had, moreover, a protectorate
over the Mosquito Coast, a great stretch of territory upon the
eastern shore of Central America which included the river
San Juan and the valley and harbor of San Juan de Nica-
ragua, or Greytown. All men's minds then were concen-
trated upon the Nicaragua Canal route, as they were until
after the treaty of 1901 was made.
And thus when the United States turned its attention to-
ward joining these two coasts by a canal through the Isthmus
it found Great Britain in possession of the eastern end of the
route which men generally believed would be the most avail-
able route for the canal. Accordingly, the United States
sought a treaty with Great Britain by which Great Britain
should renounce the advantage which she had and admit the
United States to equal participation with her in the control
and the protection of a canal across the Isthmus. From that
came the Clayton-Bulwer Treaty.
Let me repeat that this treaty was sought not by England
but by the United States. Mr. Clayton, who was Secretary
of State at the time, sent our minister to France, Mr. Rives,
to London for the purpose of urging upon Lord Palmerston
the making of the treaty. The treaty was made by Great
Britain as a concession to the urgent demands of the United
States.
I should have said, in speaking about the urgency with
which the United States sought the Clayton-Bulwer Treaty,
PANAMA CANAL TOLLS
211
ور
that there were two treaties made with Nicaragua, one by
Mr. Heis and one by Mr. Squire, both representatives of the
United States. Each gave, so far as Nicaragua could, great
powers to the United States in regard to the construction of a
canal, but they were made without authorization from the
United States, and they were not approved by the Govern-
ment of the United States and were never sent to the Senate.
Mr. Clayton, however, held those treaties in abeyance as a
means of inducing Great Britain to enter into the Clayton-
Bulwer Treaty. He held them practically as a whip over the
British negotiators, and having accomplished the purpose
they were thrown into the waste basket.
By that treaty Great Britain agreed with the United States
that neither Government should “ever obtain or maintain
for itself any exclusive control over the ship canal "; that
neither would “make use of any protection ” which either
afforded to a canal" or any alliance which either” might
have" with any State or people for the purpose of erecting or
maintaining any fortifications, or of occupying, fortifying,
or colonizing Nicaragua, Costa Rica, the Mosquito Coast, or
any part of Central America, or of assuming or exercising
dominion over the same," and that neither would “take
advantage of any intimacy, or use any alliance, connection
or influence that either ” might “possess with any State or
Government through whose territory the said canal may
pass, for the purpose of acquiring or holding, directly or in-
directly, for the citizens or subjects of the one, any rights or
advantages in regard to commerce or navigation through the
said canal which shall not be offered on the same terms to
the citizens or subjects of the other.'
You will observe, Mr. President, that under these provi-
sions the United States gave up nothing that it then had. Its
obligations were entirely looking to the future; and Great
Britain gave up its rights under the protectorate over the
>>
212
INTERNATIONAL SUBJECTS
>
Mosquito Coast, gave up its rights to what was supposed to
be the eastern terminus of the canal. And, let me say with-
out recurring to it again, under this treaty, after much dis-
cussion which ensued as to the meaning of its terms, Great
Britain did surrender her rights to the Mosquito Coast, so
that the position of the United States and Great Britain be-
came a position of absolute equality. Under this treaty also
both parties agreed that each should “enter into treaty
stipulations with such of the Central American States as
they” might “ deem advisable for the purpose
- I now
quote the words of the treaty for the purpose of more
effectually carrying out the great design of this convention,
namely, that of constructing and maintaining the said canal as
a ship communication between the two oceans for the benefit
of mankind,on equal terms to all, and of protecting the same.
That declaration, Mr. President, is the corner stone of the
rights of the United States upon the Isthmus of Panama,
rights having their origin in a solemn declaration that there
should be constructed and maintained a ship canal “be-
tween the two oceans for the benefit of mankind, on equal
terms to all."
In the eighth article of that treaty the parties agreed:
The Governments of the United States and Great Britain having not
only desired, in entering into this convention, to accomplish a particular
object, but also to establish a general principle, they hereby agree to
extend their protection, by treaty stipulations, to any other practicable
communications, whether by canal or railway, across the isthmus which
connects North and South America, and especially to the interoceanic
communications, should the same prove to be practicable, whether by
canal or railway, which are now proposed to be established by the way of
Tehuantepec or Panama. In granting, however, their joint protection to
any such canals or railways as are by this article specified, it is always
understood by the United States and Great Britain that the parties con-
structing or owning the same shall impose no other charges or conditions
of traffic thereupon than the aforesaid Governments shall approve of as
just and equitable; and that the same canals or railways, being open to
the citizens and subjects of the United States and Great Britain on equal
PANAMA CANAL TOLLS
213
terms, shall also be open on like terms to the citizens and subjects of every
other State which is willing to grant thereto such protection as the United
States and Great Britain engage to afford.
There, Mr. President, is the explicit agreement for equality
of treatment of the citizens of the United States and of the
citizens of Great Britain in any canal, wherever it may be
constructed, across the Isthmus. That was the fundamental
principle embodied in the treaty of 1850. And we are not
without an authoritative construction as to the scope and
requirements of an agreement of that description, because
we have another treaty with Great Britain — a treaty which
formed one of the great landmarks in the diplomatic history
of the world, and one of the great steps in the progress of
civilization--the Treaty of Washington of 1871, under which
the Alabama Claims were submitted to arbitration. Under
that treaty there were provisions for the use of the American
canals along the waterway of the Great Lakes, and the Cana-
dian canals along the same line of communication, upon
equal terms to the citizens of the two countries.
Some years after the treaty, Canada undertook to do some-
thing quite similar to what we have undertaken to do in this
law about the Panama Canal. It provided that while
nominally a toll of twenty cents a ton should be charged
upon the merchandise both of Canada and of the United
States there should be a rebate of eighteen cents for all mer-
chandise which went to Montreal or beyond, leaving a toll of
but two cents a ton for that merchandise. The United States
objected; and I beg your indulgence while I read from the
message of President Cleveland upon that subject, sent to
the Congress, August 23, 1888. He says:
By Article 27 of the Treaty of 1871 provision was made to secure to
the citizens of the United States the use of the Welland, St. Lawrence, and
other canals in the Dominion of Canada on terms of equality with the
inhabitants of the Dominion, and also to secure to the subjects of Great
Britain the use of the St. Clair Flats Canal on terms of equality with the
inhabitants of the United States.
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INTERNATIONAL SUBJECTS
The equality with the inhabitants of the Dominion which we were
promised in the use of the canals of Canada did not secure to us freedom
from tolls in their navigation, but we had a right to expect that we, being
Americans and interested in American commerce, would be no more
burdened in regard to the same than Canadians engaged in their own
trade; and the whole spirit of the concession made was, or should have
been, that merchandise and property transported to an American market
through these canals should not be enhanced in its cost by tolls many
times higher than such as were carried to an adjoining Canadian market.
All our citizens, producers and consumers as well as vessel owners, were
to enjoy the equality promised.
And yet evidence has for some time been before the Congress, furnished
by the Secretary of the Treasury, showing that while the tolls charged in
the first instance are the same to all, such vessels and cargoes as are
destined to certain Canadian ports –
their coastwise trade-
are allowed a refund of nearly the entire tolls, while those bound for
American ports are not allowed any such advantage.
To promise equality and then in practice make it conditional upon our
vessels doing Canadian business instead of their own, is to fulfill a promise
with the shadow of performance.
Upon the representations of the United States embodying
that view, Canada retired from the position which she had
taken, rescinded the provision for differential tolls, and put
American trade going to American markets on the same basis
of tolls as Canadian trade going to Canadian markets. She
did not base her action upon any idea that there was no com-
petition between trade to American ports and trade to Cana-
dian ports, but she recognized the law of equality in good
faith and honor; and to this day that law is being accorded
to us and by each great nation to the other.
I have said, Mr. President, that the Clayton-Bulwer Treaty
was sought by us. In seeking it, we declared to Great Britain
what it was that we sought. I ask the Senate to listen to the
declaration that we made to induce Great Britain to enter
into that treaty, - to listen to it because it is the declaration
by which we are in honor bound as truly as if it were signed
and sealed.
PANAMA CANAL TOLLS
215
Here I will read from the report made to the Senate on
April 5, 1900, by Senator Cushman K. Davis, then chairman
of the Committee on Foreign Relations. So you will perceive
that this is no new matter to the Senate of the United States,
and that I am not proceeding upon my own authority in
thinking it worthy of your attention.
Mr. Rives was instructed to say and did say to Lord Pal-
merston, în urging upon him the making of the Clayton-
Bulwer Treaty, this:
The United States sought no exclusive privilege or preferential right
of any kind in regard to the proposed communication, and their sincere
wish, if it should be found practicable, was to see it dedicated to the
common use of all nations on the most liberal terms and a footing of
perfect equality for all.
That the United States would not, if they could, obtain any exclusive
right or privilege in a great highway which naturally belonged to all
mankind.
That, sir, was the spirit of the Clayton-Bulwer convention.
That was what the United States asked Great Britain to
agree upon. That self-denying declaration underlay and
permeated and found expression in the terms of the Clayton-
Bulwer convention. And upon that representation, Great
Britain in that convention relinquished her coign of vantage
which she herself had for the benefit of her great North
American empire for the control of the canal across the
Isthmus.
Mr. CUMMINS. Mr. President-
The PRESIDENT pro tempore. Does the Senator from New
York yield to the Senator from Iowa ?
Mr. Root. I do, but —
Mr. CUMMINS. I will ask the Senator from New York
whether he prefers that there shall be no interruptions ? If
he does, I shall not ask any question.
Mr. Root. Mr. President, I should prefer it, because
what I have to say involves establishing the relation between
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INTERNATIONAL SUBJECTS
a considerable number of acts and instruments, and inter-
ruptions naturally would destroy the continuity of my
statement.
Mr. CUMMINS. The question I was about to ask was purely
a historic one.
Mr. Root. I shall be very glad to answer the Senator.
Mr. CUMMINS. The Senator has stated that at the time of
the Clayton-Bulwer Treaty we were excluded from the Mos-
quito Coast by the protectorate exercised by Great Britain
over that coast. My question is this: Had we not at that
time a treaty with New Granada that gave us equal or greater
rights upon the Isthmus of Panama than were claimed even
by Great Britain over the Mosquito Coast ?
Mr. Root. Mr. President, we had the treaty of 1846 with
New Granada, under which we undertook to protect any
railway or canal across the Isthmus. But that did not apply
to the Nicaragua route, which was then supposed to be the
most available route for a canal.
Mr. CUMMINS. I quite agree with the Senator about that.
I only wanted it to appear in the course of the argument that
we were then under no disability so far as concerned building
a canal across the Isthmus of Panama.
Mr. Root. We were under a disability so far as concerned
building a canal by the Nicaragua route, which was regarded
as the available route until the discussion in the Senate after
1901, in which Senator Spooner and Senator Hanna practi-
cally changed the judgment of the Senate with regard to
what was the proper route to take. And in the treaty of
1850, so anxious were we to secure freedom from the claims
of Great Britain on the eastern end of the Nicaragua route
that, as I have read, we agreed that the same contract should
apply not merely to the Nicaragua route but to the whole of
the Isthmus. So that from that time on the whole Isthmus
was impressed by the same obligations which were impressed
PANAMA CANAL TOLLS
217
upon the Nicaragua route, and whatever rights we had under
our treaty of 1846 with New Granada, we were thenceforth
bound to exercise with due regard and subordination to the
provisions of the Clayton-Bulwer Treaty.
Mr. President, after the lapse of some thirty years, during
the early part of which we were strenuously insisting upon
the observance by Great Britain of her obligations under the
Clayton-Bulwer Treaty and during the latter part of which
we were beginning to be restive under our obligations by rea-
son of that treaty, we undertook to secure a modification of
it from Great Britain. In the course of that undertaking,
there was much discussion and some difference of opinion as
to the continued obligations of the treaty. But I think that
was finally put at rest by the decision of Secretary Olney in
the memorandum upon the subject made by him in the year
1896. In that memorandum he said:
Under these circumstances, upon every principle which governs the
relation to each other, either of nations or of individuals, the United
States is completely estopped from denying that the treaty is in full force
and vigor.
If changed conditions now make stipulations, which were once deemed
advantageous, either inapplicable or injurious, the true remedy is not in
ingenious attempts to deny the existence of the treaty or to explain away
its provisions, but in a direct and straightforward application to Great
Britain for a reconsideration of the whole matter.
We did apply to Great Britain for a reconsideration of the
whole matter, and the result of the application was the Hay-
Pauncefote Treaty. That treaty came before the Senate in
two forms: first, in the form of an instrument signed on
February 5, 1900, which was amended by the Senate; and,
second, in the form of an instrument signed on November 18,
1901, which contained the greater part of the provisions of
the earlier instrument, but somewhat modified or varied the
amendments which had been made by the Senate to that
earlier instrument.
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INTERNATIONAL SUBJECTS
It is really but one process by which the paper sent to the
Senate in February, 1900, passed through a course of amend-
ment; first, at the hands of the Senate, and then at the hands
of the negotiators between Great Britain and the United
States, with the subsequent approval of the Senate. In both
the first form and the last of this treaty, the preamble pro-
vides for preserving the provisions of article eight of the
Clayton-Bulwer Treaty. Both forms provide for the con-
struction of the canal under the auspices of the United
States alone, instead of its construction under the auspices
of both countries.
Both forms of that treaty provide that the canal might
be
constructed under the auspices of the Government of the United States,
either directly at its own cost or by gift or loan of money to individuals or
corporations or through subscription to or purchase of stock or shares -
that being substituted for the provisions of the Clayton-
Bulwer Treaty under which both countries were to be
patrons of the enterprise.
Under both forms it was further provided that —
Subject to the provisions of the present convention, the said Govern-
ment-
the United States —
shall have and enjoy all the rights incident to such construction, as well
as the exclusive right of providing for the regulation and management of
the canal.
That provision, however, for the exclusive patronage of the
United States was subject to the initial provision that the
modification or change from the Clayton-Bulwer Treaty was
to be for the construction of such canal under the auspices of
the Government of the United States, without impairing the
general principle of neutralization established in article eight
of that convention.
PANAMA CANAL TOLLS
219
Then the treaty as it was finally agreed to provides that the
United States “ adopt, as the basis of such neutralization of
such ship canal,” the following rules, substantially as em-
bodied in the convention“ of Constantinople, signed October
28, 1888,” for the free navigation of the Suez Maritime
Canal; that is to say:
First. The canal shall be free and open ... to the vessels
of commerce and of war of all nations“ observing these rules
on terms of entire equality, so that there shall be no discrimi-
nation against any nation or its citizens or subjects in respect
to the conditions or charges of traffic, or otherwise.” Such
conditions and charges of traffic shall be just and equitable.
Then follow rules relating to blockade and vessels of war,
the embarkation and disembarkation of troops, and the ex-
tension of the provisions to the waters adjacent to the canal.
Now, Mr. President, that rule must, of course, be read in
connection with the provision for the preservation of the
principle of neutralization established in article eight of the
Clayton-Bulwer convention.
Let me take your minds back again to article eight of the
Clayton-Bulwer convention, consistently with which we are
bound to construe the rule established by the Hay-Paunce-
fote convention. The principle of neutralization provided
for by the eighth article is neutralization upon terms of
absolute equality both between the United States and Great
Britain and between the United States and all other powers.
It is always understood
says the eighth article
by the United States and Great Britain that the parties constructing or
owning the same
that is, the canal —
shall impose no other charges or conditions of traffic thereupon than the
aforesaid Governments shall approve of as just and equitable, and that
the same canals or railways, being open to the citizens and subjects of the
220
INTERNATIONAL SUBJECTS
United States and Great Britain on equal terms, shall also be open on
like terms to the citizens and subjects of every other State which is willing
to grant thereto such protection as the United States and Great Britain
engage to afford.
Now, we are not at liberty to put any construction upon
the Hay-Pauncefote Treaty which violates that controlling
declaration of absolute equality between the citizens and
subjects of Great Britain and the United States.
Mr. President, when the Hay-Pauncefote convention was
ratified by the Senate, it was in full view of this controlling
principle, in accordance with which their act must be con-
strued; for Senator Davis, in his report from the Committee
on Foreign Relations, to which I have already referred --
Mr. McCUMBER. On the treaty in its first form.
Mr. Root. Yes; the report on the treaty in its first form.
Mr. Davis said, after referring to the Suez convention of
1888:
The United States cannot take an attitude of opposition to the prin-
ciples of the great act of October 28, 1888, without discrediting the official
declarations of our Government for fifty years on the neutrality of an
isthmian canal and its equal use by all nations without discrimination.
To set up the selfish motive of gain by establishing a monopoly of a
highway that must derive its income from the patronage of all maritime
countries would be unworthy of the United States if we owned the country
through which the canal is to be built.
But the location of the canal belongs to other governments, from whom
we must obtain any right to construct a canal on their territory, and it is
not unreasonable, if the question was new and was not involved in a sub-
sisting treaty with Great Britain, that she should question the right of
even Nicaragua and Costa Rica to grant to our ships of commerce and of
war extraordinary privileges of transit through the canal.
I shall revert to that principle declared by Senator Davis. I
continue the quotation:
It is not reasonable to suppose that Nicaragua and Costa Rica would
grant to the United States the exclusive control of a canal through those
States on terms less generous to the other maritime nations than those
prescribed in the great act of October 28, 1888, or if we could compel
PANAMA CANAL TOLLS
221
them to give us such advantages over other nations it would not be
creditable to our country to accept them.
That our Government or our people will furnish the money to build
the canal presents the single question whether it is profitable to do so.
If the canal, as property, is worth more than its cost, we are not called
on to divide the profits with other nations. If it is worth less and we are
compelled by national necessities to build the canal, we have no right to
call on other nations to make up the loss to us. In any view, it is a ven-
ture that we will enter upon if it is to our interest, and if it is otherwise
we will withdraw from its further consideration.
The Suez Canal makes no discrimination in its tolls in favor of its stock-
holders, and, taking its profits or the half of them as our basis of calcula-
tion, we will never find it necessary to differentiate our rates of toll in
favor of our own people in order to secure a very great profit on the invest-
ment.
Mr. President, in view of that declaration of principle, in
the face of that declaration, the United States cannot afford
to take a position at variance with the rule of universal
equality established in the Suez Canal convention - equality
as to every stockholder and all non-stockholders, equality as
to every nation whether in possession or out of possession.
In the face of that declaration, the United States cannot
afford to take any other position than upon the rule of uni-
versal equality of the Suez Canal convention, and upon the
further declaration that the country owning the territory
through which this canal was to be built would not and
ought not to give any special advantage or preference to the
United States as compared with all the other nations of the
earth. In view of that report, the Senate rejected the amend-
ment which was offered by Senator Bard, of California,
providing for preference to the coastwise trade of the United
States. This is the amendment which was proposed:
The United States reserves the right in the regulation and management
of the canal to discriminate in respect of the charges of traffic in favor of
vessels of its own citizens engaged in the coastwise trade.
I say, the Senate rejected that amendment upon this re-
port, which declared the rule of universal equality without
222
INTERNATIONAL SUBJECTS
any preference or discrimination in favor of the United States
as being the meaning of the treaty and the necessary meaning
of the treaty.
There was still more before the Senate, there was still more
before the country, to fix the meaning of the treaty. I have
read the representations that were made, the solemn declara-
tions made by the United States to Great Britain establishing
the rule of absolute equality without discrimination in favor
of the United States or its citizens, to induce Great Britain to
enter into the Clayton-Bulwer Treaty.
Now let me read the declaration made to Great Britain to
induce her to modify the Clayton-Bulwer Treaty and give up
her right to joint control of the canal and put in our hands the
sole power to construct it or patronize it or control it.
Mr. Blaine said in his instructions to Mr. Lowell on June
24, 1881, directing Mr. Lowell to propose to Great Britain
the modification of the Clayton-Bulwer Treaty - I read his
words:
The United States recognizes a proper guarantee of neutrality as essen-
tial to the construction and successful operation of any highway across
the Isthmus of Panama, and in the last generation every step was taken
by this Government that it deemed requisite in the premises. The neces-
sity was foreseen and abundantly provided for long in advance of any
possible call for the actual exercise of power. . .
Nor, in time of peace,
does the United States seek to have any exclusive privileges accorded to Ameri-
can ships in respect to precedence or tolls through an interoceanic canal any
more than it has sought like privileges for American goods in transit over the
Panama Railway, under the exclusive control of an American corporation.
The extent of the privileges of American citizens and ships is measureable
under the treaty of 1846 by those of Colombian citizens and ships. It
would be our earnest desire and expectation to see the world's peaceful com-
merce enjoy the same just, liberal, and rational treatment.
Secretary Cass had already said to Great Britain in 1857:
The United States, as I have before had occasion to assure your Lord-
ship, demand no exclusive privileges in these passages, but will always exert
their influence to secure their free and unrestricted benefits, both in peace and
war, to the commerce of the world.
PANAMA CANAL TOLLS
223
Mr. President, it was upon that declaration, upon that self-
denying declaration, upon that solemn assurance, that the
United States sought not and would not have any preference
for her own citizens over the subjects and citizens of other
countries, that Great Britain abandoned her rights under the
Clayton-Bulwer Treaty and entered into the Hay-Pauncefote
Treaty, with the clause continuing the principles of clause
eight, which embodied these same declarations, and the
clause establishing the rule of equality, taken from the Suez
Canal convention. We are not at liberty to give any other
construction to the Hay-Pauncefote Treaty than the con-
struction which is consistent with that declaration.
Mr. President, these declarations, made specifically and
directly to secure the making of these treaties, do not stand
alone. For a longer period than the oldest Senator has lived,
the United States has been from time to time making open
and public declarations of her disinterestedness, her altruism,
her purposes for the benefit of mankind, her freedom from
desire or willingness to secure special and peculiar advantage
in respect of transit across the Isthmus. In 1826, Mr. Clay,
then Secretary of State in the Cabinet of John Quincy Adams,
said, in his instructions to the delegates to the Panama
Congress of that year:
If a canal across the Isthmus be opened so as to admit of the passage
of sea vessels from ocean to ocean, the benefit of it ought not to be exclu-
sively appropriated to any one nation, but should be extended to all parts
of the globe upon the payment of a just compensation for reasonable tolls.
Mr. Cleveland, in his annual message of 1885, said:
The lapse of years has abundantly confirmed the wisdom and foresight
of those earlier administrations which, long before the conditions of mari-
time intercourse were changed and enlarged by the progress of the age,
proclaimed the vital need of interoceanic transit across the American
Isthmus and consecrated it in advance to the common use of mankind
by their positive declarations and through the formal obligations of
treaties. Toward such realization the efforts of my administration will be
224
INTERNATIONAL SUBJECTS
applied, ever bearing in mind the principles on which it must rest and which
were declared in no uncertain tones by Mr. Cass, who, while Secretary of
State in 1858, announced that “ What the United States want in Central
America next to the happiness of its people is the security and neutrality
of the interoceanic routes which lead through it.
By public declarations, by the solemn asseverations of our
treaties with Colombia in 1846, with Great Britain in 1850,
our treaties with Nicaragua, our treaty with Great Britain in
1901, our treaty with Panama in 1903, we have presented to
the world the most unequivocal guaranty of disinterested
action for the common benefit of mankind and not for our
selfish advantage.
In the message which was sent to Congress by President
Roosevelt on January 4, 1904, explaining the course of this
Government regarding the revolution in Panama and the
making of the treaty by which we acquired all the title that
we have upon the Isthmus, President Roosevelt said:
If ever a Government could be said to have received a mandate from
civilization to effect an object the accomplishment of which was demanded
in the interest of mankind, the United States holds that position with
regard to the interoceanic canal.
Mr. President, there has been much discussion for many
years among authorities upon international law, as to
whether artificial canals for the convenience of commerce
did not partake of the character of natural passageways to
such a degree that, by the rules of international law, equality
must be observed in the treatment of mankind by the nation
which has possession and control. Many very high authori-
ties have asserted that that rule applies to the Panama Canal
even without a treaty. We base our title upon the right of
mankind in the Isthmus, treaty or no treaty. We have long
asserted, beginning with Secretary Cass, that the nations of
Central America had no right to debar the world from its
right of passage across the Isthmus. Upon that view, in the
words which I have quoted from President Roosevelt's mes-
PANAMA CANAL TOLLS
225
sage to Congress, we base the justice of our entire action upon
the Isthmus which resulted in our having the Canal Zone.
We could not have taken it for our selfish interest; we could
not have taken it for the purpose of securing an advantage to
the people of the United States over the other peoples of the
world. It was only because civilization had its rights to pas-
sage across the Isthmus, and because we made ourselves the
mandatory of civilization to assert those rights, that we are
entitled to be there at all. On the principles which underlie
our action and upon all the declarations that we have made
for more than half a century, as well as upon the express
and positive stipulations of our treaties, we are forbidden
to say we have taken the custody of the Canal Zone to
give ourselves any right of preference over the other civil-
ized nations of the world, beyond those rights which go
to the owner of a canal to have the tolls that are charged
for passage.
Well, Mr. President, asserting that we were acting for the
common benefit of mankind, willing to accept no preferential
right of our own, just as we asserted it to secure the Clayton-
Bulwer Treaty, just as we asserted it to secure the Hay-
Pauncefote Treaty, when we had recognized the republic of
Panama, we made a treaty with her on November 18, 1903.
I ask your attention now to the provisions of that treaty. In
that treaty both Panama and the United States recognize the
fact that the United States was acting, not for its own special
and selfish interest, but in the interest of mankind.
The suggestion has been made that we are relieved from
the obligations of our treaties with Great Britain because the
Canal Zone is our territory. It is said that, because it has
become ours, we are entitled to build the canal on our own
territory and do what we please with it. Nothing can be
further from the fact. It is not our territory, except in trust.
Article two of the treaty with Panama provides:
226
INTERNATIONAL SUBJECTS
The republic of Panama grants to the United States in perpetuity the
use, occupation, and control of a zone of land and land under water for
the construction, maintenance, operation, sanitation, and protection of
said canal
and for no other purpose
of the width of ten miles extending to the distance of five miles on each
side of the center line of the route of the canal to be constructed.
The republic of Panama further grants to the United States in per-
petuity the use, occupation, and control of any other lands and waters
outside of the zone above described which may be necessary and conven-
ient for the construction, maintenance, operation, sanitation, and protec-
tion of the said canal or of any auxiliary canals or other works necessary
and convenient for the construction, maintenance, operation, sanitation,
and protection of the said enterprise.
Article three provides:
The republic of Panama grants to the United States all the rights,
power, and authority within the zone mentioned and described in article 2
of this agreement -
from which I have just read
and within the limits of all auxiliary lands and waters mentioned and
described in said article 2 which the United States would possess and
exercise if it were the sovereign of the territory within which said lands
and waters are located to the entire exclusion of the exercise by the
republic of Panama of any such sovereign rights, power, or authority.
Article five provides:
The republic of Panama grants to the United States in perpetuity a
monopoly for the construction, maintenance, and operation of any system
of communication by means of canal or railroad across its territory be-
tween the Caribbean Sea and the Pacific Ocean.
I now read from article eighteen:
The canal, when constructed, and the entrances thereto shall be neutral
in perpetuity, and shall be opened upon the terms provided for by section
1 of article 3 of, and in conformity with all the stipulations of, the treaty
entered into by the Governments of the United States and Great Britain
on November 18, 1901.
So, Mr. President, far from our being relieved of the obliga-
tions of the treaty with Great Britain by reason of the title
PANAMA CANAL TOLLS
227
that we have obtained to the Canal Zone, we have taken that
title impressed with a solemn trust. We have taken it for no
purpose except the construction and maintenance of a canal
in accordance with all the stipulations of our treaty with
Great Britain. We cannot be false to those stipulations
without adding to the breach of contract a breach of the trust
which we have assumed, according to our own declarations,
for the benefit of mankind, as the mandatory of civilization.
In anticipation of the plainly-to-be-foreseen contingency of
our having to acquire some kind of title in order to construct
the canal, the Hay-Pauncefote Treaty provided expressly in
article four:
It is agreed that no change of territorial sovereignty or of international
relations of the country or countries traversed by the beforementioned
canal shall affect the general principle of neutralization or the obligation
of the high contracting parties under the present treaty.
So you will see that the treaty with Great Britain expressly
provides that its obligations shall continue, no matter what
title we get to the Canal Zone; and the treaty by which we
get the title expressly impresses upon it as a trust the obliga-
tions of the treaty with Great Britain. How idle it is to say
that because the Canal Zone is ours, we can do with it what
we please!
There is another suggestion made regarding the obligations
of this treaty, and that is that matters relating to the coasting
trade are matters of special domestic concern, and that no-
body else has any right to say anything about them. We did
not think so when we were dealing with the Canadian canals.
But that may not be conclusive as to rights under this treaty.
Let us examine it for a moment.
It is rather poverty of language than a genius for defini-
tion which leads us to call a voyage from New York to San
Francisco, passing along countries thousands of miles away
from our territory, “coasting trade," or to call a voyage
228
INTERNATIONAL SUBJECTS
from New York to Manila, on the other side of the world,
coasting trade.” When we use the term “coasting trade,"
what we really mean is that under our navigation laws a voy-
age which begins and ends at an American port has certain
privileges and immunities and rights, and it is necessarily in
that sense that the term is used in this statute. It must be
construed in accordance with our statutes.
Sir, I do not for a moment dispute that ordinary coasting
trade is a special kind of trade that is entitled to be treated
differently from trade to or from distant foreign points. It is
ordinarily neighborhood trade, from port to port, by which
the people of a country carry on their intercommunication,
often by small vessels, poor vessels, carrying cargoes of slight
value. It would be quite impracticable to impose upon trade
of that kind the same kind of burdens which great ocean-
going steamers, trading to the farthest parts of the earth, can
well bear. We make that distinction. Indeed, Great Britain
herself makes it, although Great Britain admits all the world
to her coasting trade. But it is by quite a different basis of
classification -- that is, the statutory basis -- that we call a
voyage from the eastern coast of the United States to the
Orient a coasting voyage, because it begins and ends in an
American port.
This is a special, peculiar kind of trade which passes
through the Panama Canal. You may call it coasting
trade," but it is unlike any other coasting trade. It is
special and peculiar to itself.
Grant that we are entitled to fix a different rate of tolls for
that class of trade from that which would be fixed for other
classes of trade. Ah, yes; but Great Britain has her coasting
trade through the canal under the same definition, and
Mexico has her coasting trade, and Germany has her coasting
trade, and Colombia has her coasting trade, in the same sense
that we have. You are not at liberty to discriminate in fixing
PANAMA CANAL TOLLS
229
tolls between a voyage from Portland, Maine, to Portland,
Oregon, by an American ship, and a voyage from Halifax to
Victoria in a British ship, or a voyage from Vera Cruz to
Acapulco in a Mexican ship, because when you do so you
discriminate, not between coasting trade and other trade, but
between American ships and British ships, Mexican ships, or
Colombian ships. That is a violation of the rule of equality
which we have solemnly adopted, and asserted and reas-
serted, and to which we are bound by every consideration
of honor and good faith. Whatever this treaty means, it
means for that kind of trade as well as for any other kind of
trade.
The suggestion has been made, also, that we should not
consider that the provision in this treaty about equality as to
tolls really means what it says, because it is not to be sup-
posed that the United States would give up the right to de-
fend itself, to protect its own territory, to land its own troops,
and to send through the canal as it pleases its own ships of
war. That is disposed of by the considerations which were
presented to the Senate in the Davis report, to which I have
already referred, in regard to the Suez convention.
The Suez convention, from which these rules of the Hay-
Pauncefote Treaty were taken almost -- though not quite
textually, contained other provisions which reserved to Tur-
key and to Egypt, as sovereigns of the territory through
which the canal passed — Egypt as the sovereign and Tur-
key as the suzerain over Egypt — all of the rights that per-
tained to sovereigns for the protection of their own territory.
As when the Hay-Pauncefote Treaty was made neither party
to the treaty had any title to the region which would be
traversed by the canal, no such clauses could be introduced.
But, as was pointed out, the rules which were taken from the
Suez Canal for the control of the canal management would
necessarily be subject to these rights of sovereignty which
230
INTERNATIONAL SUBJECTS
were still to be secured from the countries owning the terri-
tory. That is recognized by the British Government in the
note which has been sent to us and has been laid before the
Senate, or is in the possession of the Senate, from the British
foreign office.
In Sir Edward Grey's note of November 14, 1912, he says
what I am about to read. This is an explicit disclaimer of
any contention that the provisions of the Hay-Pauncefote
Treaty exclude us from the same rights of protection of terri-
tory which Nicaragua or Colombia or Panama would have
had as sovereigns, and which we succeed to, pro tanto, by
virtue of the Panama Canal treaty.
Sir Edward Grey says:
I notice that in the course of the debate in the Senate on the Panama
Canal bill the argument was used by one of the speakers that the third,
fourth, and fifth rules embodied in article 3 of the treaty show that the
words all nations” cannot include the United States, because, if the
United States were at war, it is impossible to believe that it could be
intended to be debarred by the treaty from using its own territory for
revictualling its warships or landing troops.
The same point may strike others who read nothing but the text of
the Hay-Pauncefote Treaty itself, and I think it is therefore worth while
that I should briefly show that this argument is not well founded.
I read this not as an argument but because it is a formal,
official disclaimer which is binding.
Sir Edward Grey proceeds:
The Hay-Pauncefote Treaty of 1901 aimed at carrying out the principle
of the neutralization of the Panama Canal by subjecting it to the same
régime as the Suez Canal. Rules 3, 4, and 5 of article 3 of the treaty are
taken almost textually from articles 4, 5, and 6 of the Suez Canal Con-
vention of 1888.
At the date of the signature of the Hay-Pauncefote Treaty the territory
on which the Isthmian Canal was to be constructed did not belong to the
United States, consequently there was no need to insert in the draft treaty
provisions corresponding to those in articles 10 and 13 of the Suez Canal
Convention, which preserve the sovereign rights of Turkey and of Egypt,
and stipulate that articles 4 and 5 shall not affect the right of Turkey,
as the local sovereign, and of Egypt, within the measure of her autonomy,
PANAMA CANAL TOLLS
231
to take such measures as may be necessary for securing the defense of
Egypt and the maintenance of public order, and, in the case of Turkey,
the defense of her possessions on the Red Sea.
Now that the United States has become the practical sovereign of the
canal, His Majesty's Government do not question its title to exercise
belligerent rights for its protection.
Mr. President, Great Britain has asserted the construction
of the Hay-Pauncefote Treaty of 1901, the arguments for
which I have been stating to the Senate. I realize, sir, that
I may be wrong. I have often been wrong. I realize that the
gentlemen who have taken a different view regarding the
meaning of this treaty may be right. I do not think so. But
their ability and fairness of mind would make it idle for me
not to entertain the possibility that they are right and I am
wrong. Yet, Mr. President, the question whether they are
right and I am wrong depends upon the interpretation of the
treaty. It depends upon the interpretation of the treaty in
the light of all the declarations that have been made by the
parties to it, in the light of the nature of the subject-matter
with which it deals.
Gentlemen say the question of imposing tolls or not im-
posing tolls upon our coastwise commerce, is a matter of our
concern. Ah! we have made a treaty about it. If the inter-
pretation of the treaty is as England claims, then it is not a
matter of our concern; it is a matter of treaty rights and
duties. But, sir, it is not a question as to our rights to remit
tolls to our commerce. It is a question whether we can im-
pose tolls upon British commerce when we have remitted
them from our own. That is the question. Nobody disputes
our rights to allow our own ships to go through the canal
without paying tolls. What is disputed is our right to charge
tolls against other ships when we do not charge them against
our own. That is, pure and simple, a question of interna-
tional right and duty, and depends upon the interpretation
of the treaty.
232
INTERNATIONAL SUBJECTS
Sir, we have another treaty, made between the United
States and Great Britain on April 4, 1908, in which the two
nations have agreed as follows:
Differences which may arise of a legal nature or relating to the inter-
pretation of treaties existing between the two contracting parties and
which it may not have been possible to settle by diplomacy, shall be
referred to the Permanent Court of Arbitration established at The
Hague by the convention of July 29, 1899, provided, nevertheless, that
they do not affect the vital interests, the independence, or the honor
of the two contracting states, and do not concern the interests of third
parties.
Of course, the question of the rate of tolls on the Panama
Canal does not affect any nation's vital interests. It does not
affect the independence or the honor of either of these con-
tracting states. We have a difference relating to the interpre-
tation of this treaty, and that is all there is to it. We are
bound, by this treaty of arbitration, not to stand with arro-
gant assertion upon our own Government's opinion as to the
interpretation of the treaty, not to require that Great Britain
shall suffer what she deems injustice by violation of the
treaty, or else go to war. We are bound to say,
“We keep
the faith of our treaty of arbitration, and we will submit the
question as to what this treaty means to an impartial tribunal
of arbitration."
Mr. President, if we stand in the position of arrogant re-
fusal to submit the questions arising upon the interpretation
of this treaty to arbitration, we shall not only violate our
solemn obligation, but we shall be false to all the principles
that we have asserted to the world, and that we have urged
upon mankind. We have been the apostle of arbitration.
We have been urging it upon the other civilized nations.
Presidents, secretaries of state, ambassadors, and ministers
aye, Congresses, the Senate and the House, all branches
of our Government have committed the United States to the
principle of arbitration irrevocably, unequivocally, and we
PANAMA CANAL TOLLS
233
have urged it in season and out of season on the rest of
mankind.
Sir, I cannot detain the Senate by more than beginning
upon the expressions that have come from our Government
upon this subject, but I will ask your indulgence while I call
your attention to a few selected from the others.
On June 9, 1874, the Senate Committee on Foreign Rela-
tions reported and the Senate adopted this resolution:
Resolved, That the United States having at heart the cause of peace
everywhere, and hoping to help its permanent establishment between
nations, hereby recommend the adoption of arbitration as a great and
practical method for the determination of international difference, to be
maintained sincerely and in good faith, so that war may cease to be
regarded as a proper form of trial between nations.
On June 17, 1874, the Committee on Foreign Affairs of the
House adopted this resolution:
WHEREAS, War is at all times destructive of the material interests of a
people, demoralizing in its tendencies, and at variance with an enlightened
public sentiment; and whereas, diferences between nations should in the
interests of humanity and fraternity be adjusted, if possible, by international
arbitration: therefore,
Resolved, That the people of the United States being devoted to the
policy of peace with all mankind, enjoining its blessings and hoping for
its permanence and its universal adoption, hereby through their repre-
sentatives in Congress recommend such arbitration as a rational substitute
for war; and they further recommend to the treaty-making power of the
Government to provide, if practicable, that hereafter in treaties made
between the United States and foreign powers war shall not be declared
by either of the contracting parties against the other until efforts shall have
been made to adjust all alleged cause of difference by impartial arbitration.
On the same June 17, 1874, the Senate adopted this resolu-
tion:
Resolved, etc., That the President of the United States is hereby au-
thorized and requested to negotiate with all civilized powers who may be
willing to enter into such negotiations for the establishment of an inter-
national system whereby matters in dispute between different Govern-
ments agreeing thereto may be adjusted by arbitration, and, if possible,
without recourse to war.
234
INTERNATIONAL SUBJECTS
On June 14, 1888, and again on February 14, 1890, the
Senate and the House adopted a concurrent resolution in the
words which I now read:
Resolved by the Senate (the House of Representatives concurring), That the
President be, and is hereby, requested to invite, from time to time, as fit
occasions may arise, negotiations with any Government with which the
United States has, or may have, diplomatic relations, to the end that any
differences or disputes arising between the two Governments which cannot
be adjusted by diplomatic agency may be referred to arbitration and be
peaceably adjusted by such means.
This was concurred in by the House on April 3, 1890.
Mr. President, in pursuance of those declarations by both
Houses of Congress, the Presidents and the Secretaries of
State and the diplomatic agents of the United States, doing
their bounden duty, have been urging arbitration upon the
people of the world. Our representatives in The Hague Con-
ference of 1899, and in The Hague Conference of 1907, and
in the Pan-American Conference in Washington, and in the
Pan-American Conference in Mexico, and in the Pan-Ameri-
can Conference in Rio de Janeiro, were instructed to urge
and did urge and pledge the United States in the most un-
equivocal and urgent terms to support the principle of
arbitration upon all questions capable of being submitted
to a tribunal for a decision.
Under those instructions, Mr. Hay addressed the people
of the entire civilized world with the request to come into
treaties of arbitration with the United States. Here was his
letter. After quoting from the resolutions and from expres-
sions by the President he said:
Moved by these views, the President has charged me to instruct you
to ascertain whether the Government to which you are accredited, which
he has reason to believe is equally desirous of advancing the principle of
international arbitration, is willing to conclude with the Government of
the United States an arbitration treaty of like tenor to the arrangement
concluded between France and Great Britain on October 14, 1903.
!
PANAMA CANAL TOLLS
235
That was the origin of this treaty. The treaties made by
Mr. Hay were not satisfactory to the Senate because of the
question about the participation of the Senate in the make-up
of the special agreement of submission. Mr. Hay's successor
modified that on conference with the Committee on Foreign
Relations of the Senate, and secured the assent of the other
countries of the world to the treaty with that modification.
We have made twenty-five of these treaties of arbitration,
covering the greater part of the world, under the direction of
the Senate of the United States and the House of Represen-
tatives of the United States and in accordance with the
traditional policy of the United States, holding up to the
world the principle of peaceful arbitration.
One of these treaties is here, and under it Great Britain is
demanding that the question as to what the true interpreta-
tion of our treaty about the canal is, shall be submitted to
decision and not be made the subject of war or of submission
to what she deems injustice to avoid war.
In response to the last resolution which I have read, the
concurrent resolution passed by the Senate and the House
requesting the President to enter into the negotiations which
resulted in these treaties of arbitration, the British House of
Commons passed a resolution accepting the overture. On
July 16, 1893, the House of Commons adopted this resolution:
Resolved, That this House has learnt with satisfaction that both Houses
of the United States Congress have, by resolution, requested the President
to invite from time to time, as fit occasions may arise, negotiations with
any government with which the United States have or may have diplo-
matic relations, to the end that any differences or disputes arising between
the two governments which cannot be adjusted by diplomatic agency may
be referred to arbitration and peaceably adjusted by such means, and
that this House, cordially sympathizing with the purpose in view, expresses
the hope that Her Majesty's Government will lend their ready coöperation
to the Government of the United States upon the basis of the foregoing
resolution.
Her Majesty's Government did, and thence came this treaty.
236
INTERNATIONAL SUBJECTS
Mr. President, what revolting hypocrisy we convict our-
selves of, if after all this, the first time there comes up a ques-
tion in which we have an interest, the first time there comes
up a question of difference about the meaning of a treaty as
to which we fear we may be beaten in an arbitration, we re-
fuse to keep our agreement! Where will be our self-respect
if we do that? Where will be that respect to which a great
nation is entitled from the other nations of the earth ?
I have read from what Congress has said. Let me read
something from President Grant's annual message of Decem-
ber 4, 1871. He is commenting upon the arbitration provi-
sions of the treaty of 1871, in which Great Britain submitted
to arbitration our claims against her, known as the Alabama
Claims, in which Great Britain submitted those claims where
she stood possibly to lose but not possibly to gain anything,
and submitted them against the most earnest and violent
protest of many of her own citizens. President Grant said:
The year has been an eventful one in witnessing two great nations
speaking one language and having one lineage, settling by peaceful arbi-
tration disputes of long standing and liable at any time to bring those
nations into costly and bloody conflict. An example has been set which,
if successful in its final issue, may be followed by other civilized nations
and finally be the means of returning to productive industry millions of
men now maintained to settle the disputes of nations by the bayonet and
by broadside.
Under the authority of these resolutions, our delegates
in the first Pan-American Conference at Washington secured
the adoption of this resolution April 18, 1890:
ARTICLE 1. The republics of North, Central, and South America
hereby adopt arbitration as a principle of American international law for
the settlement of the differences, disputes, or controversies that may arise
between two or more of them.
And this:
The International American Conference resolves that this conference,
having recommended arbitration for the settlement of disputes among the
PANAMA CANAL TOLLS
237
republics of America, begs leave to express the wish that controversies
between them and the nations of Europe may be settled in the same
friendly manner.
It is further recommended that the Government of each nation herein
represented communicate this wish to all friendly powers.
4
Upon that Mr. Blaine, that most vigorous and virile
American, in his address as the presiding officer of that first
Pan-American Conference in Washington said:
If, in this closing hour, the Conference had but one deed to celebrate
we should dare call the world's attention to the deliberate, confident,
solemn dedication of two great continents to peace and to the prosperity
which has peace for its foundation. We hold up this new Magna Charta,
which abolishes war and substitutes arbitration between the American
republics, as the first and great fruit of the International American Con-
ference. That noblest of Americans, the aged poet and philanthropist,
Whittier, is the first to send his salutation and his benediction, declaring,
“If in the spirit of peace the American conference agrees upon a rule of
arbitration which shall make war in this hemisphere well-nigh impossible,
its sessions will prove one of the most important events in the history of
the world.”
President Arthur in his annual message of December 4,
1882, said, in discussing the proposition for a Pan-American
Conference:
I am unwilling to dismiss this subject without assuring you of my
support of any measure the wisdom of Congress may devise for the
promotion of peace on this continent and throughout the world, and I
trust the time is nigh when, with the universal assent of civilized peoples,
all international differences shall be determined without resort to arms by
the benignant processes of arbitration.
President Harrison in his message of December 3, 1889,
said concerning the Pan-American Conference:
But while the commercial results which it is hoped will follow this
Conference are worthy of pursuit and of the great interests they have
excited, it is believed that the crowning benefit will be found in the better
securities which may be devised for the maintenance of peace among all
American nations and the settlement of all contentions by methods that
a Christian civilization can approve.
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INTERNATIONAL SUBJECTS
President Cleveland, in his message of December 4, 1893,
said, concerning the resolution of the British Parliament of
July 16, 1893, which I have already read, and commenting on
the concurrent resolution of February 14 and April 18, 1890:
It affords me signal pleasure to lay this parliamentary resolution before
the Congress and to express my sincere gratification that the sentiment of
two great kindred nations is thus authoritatively manifested in favor of
the rational and peaceable settlement of international quarrels by honor-
able resort to arbitration.
President McKinley, in his message of December 6, 1897,
said:
International arbitration cannot be omitted from the list of subjects
claiming our consideration. Events have only served to strengthen the
general views on this question expressed in my inaugural address. The
best sentiment of the civilized world is moving toward the settlement
of differences between nations without resorting to the horrors of war.
Treaties embodying these humane principles on broad lines without in
any way imperiling our interests or our honor shall have my constant
encouragement.
President Roosevelt, in his message of December 3, 1905,
said:
I earnestly hope that the Conference -
the second Hague Conference --
may be able to devise some way to make arbitration between nations the
customary way of settling international disputes in all save a few classes
of cases, which should themselves be sharply defined and rigidly limited
as the present governmental and social development of the world will
permit. If possible, there should be a general arbitration treaty negotiated
among all nations represented at the Conference.
O Mr. President, are we Pharisees? Have we been insin-
cere and false? Have we been pretending in all these long
years of resolution and declaration and proposal and urgency
for arbitration ? Are we ready now to admit that our coun-
try, that its Congresses and its Presidents, have all been
guilty of false pretense, of humbug, of talking to the gal-
leries, of fine words to secure applause, and that the instant
1
PANAMA CANAL TOLLS
239
we have an interest we are ready to falsify every declaration,
every promise, and every principle ? But we must do that
if we arrogantly insist that we alone will determine upon the
interpretation of this treaty and will refuse to abide by the
agreement of our treaty of arbitration.
Mr. President, what is all this for? Is the game worth the
candle ? Is it worth while to put ourselves in a position and
to remain in a position, to maintain which we may be driven
to repudiate our principles, our professions, and our agree-
ments for the purpose of conferring a money benefit — not
very great, not very important, but a money benefit - at the
expense of the Treasury of the United States, upon the most
highly and absolutely protected special industry in the
United States ? Is it worth while ? We refuse to help our
foreign shipping, which is in competition with the lower wages
and the lower standard of living of foreign countries, and we
are proposing to do this for a part of our coastwise shipping
which has now by law the absolute protection of a statutory
monopoly and which needs no help.
Mr. President, there is but one alternative consistent with
self-respect. We must arbitrate the interpretation of this
treaty or we must retire from the position we have taken.
O Senators, consider for a moment what it is that we are
doing. We all love our country; we are all proud of its his-
tory; we are all full of hope and courage for its future; we
love its good name; we desire for it that power among the
nations of the earth which will enable it to accomplish still
greater things for civilization than it has accomplished in its
noble past. Shall we make ourselves in the minds of the
world like unto the man who in his own community is marked
as astute and cunning to get out of his obligations ? Shall we
make ourselves like unto the man who is known to be false
to his agreements; false to his pledged word ? Shall we have
it understood the whole world over that "you must look out
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INTERNATIONAL SUBJECTS
for the United States or she will get the advantage of you ";
that we are clever and cunning to get the better of the other
party to an agreement, and that at the end —
Mr. BRANDEGEE. Slippery ” would be a better word.
Mr. Root. Yes; I thank the Senator for the suggestion
slippery." Shall we in our generation add to those claims
to honor and respect that our fathers have established for our
country good cause that we shall be considered slippery?
It is worth while, Mr. President, to be a citizen of a great
country, but size alone is not enough to make a country great.
A country must be great in its ideals; it must be great-
hearted; it must be noble; it must despise and reject all
smallness and meanness; it must be faithful to its word; it
must keep the faith of treaties; it must be faithful to its
mission of civilization in order that it shall be truly great.
It is because we believe that of our country that we are proud,
aye, that the alien with the first step of his foot upon our soil
is proud to be a part of this great democracy.
Let us put aside the idea of small, petty advantage; let us
treat this situation and these obligations in our relation to
this canal in that large way which befits a great nation.
Mr. President, how sad it would be if we were to dim the
splendor of that great achievement by drawing across it the
mark of petty selfishness; if we were to diminish and reduce
for generations to come the power and influence of this free
republic for the uplifting and the progress of mankind by
destroying the respect of mankind for us! How sad it would
be if you and I, Senators, were to make ourselves responsible
for destroying that bright and inspiring ideal which has
enabled free America to lead the world in progress toward
liberty and justice!
PANAMA CANAL TOLLS
SPEECH IN REPLY IN THE SENATE OF THE UNITED STATES
MAY 21, 1914
The Senate, as in Committee of the Whole, had under consideration the bill
(H. R. 14385) to amend section 5 of an act to provide for the opening, maintenance,
protection, and operation of the Panama Canal and the sanitation of the Canal
Zone, approved August 24, 1912.
R. PRESIDENT, some time ago I taxed the patience
of rather
upon
the
duty of the United States in regard to tolls upon the Panama
Canal; and what I have to say now upon that subject is
rather in the way of reply to arguments which have been
made, views which have been expressed, and opinions which
have been made manifest by various Senators in the course
of the long debate which has intervened.
I wish, before proceeding, to express my very great satis-
faction with the character of the debate in this Chamber
upon this subject. The excitement and fervor of a false
patriotism, the insolence and rancor which ill befit the con-
sideration of a serious international subject by a great people,
but which have been injected into the popular discussion of
this question in some quarters, have found but little response
among the members of the Senate of the United States. The
question which is before us has been debated with a sense of
responsibility and dignity. Senators have argued the ques-
tion as lawyers and legislators upon its merits. I address
myself to a reply to some of the arguments which have been
made with a sense of serene satisfaction in dealing with a
question which rests in the minds of my colleagues upon
considerations of right reason and just regard for national
obligations and national rights.
241
242
INTERNATIONAL SUBJECTS
Let me try, sir, to state the question; and to state the ques-
tion, I must state the situation as it is presented. The bill
which is before the Senate proposes to repeal certain clauses
of the Panama Canal Act passed August 24, 1912. That act
was designed to provide for the opening, maintenance, pro-
tection, and operation of the canal, and it conferred authority
upon the President in respect of establishing tolls for the use
of the canal and imposed certain limitations upon him. Sec-
tion five of the act authorized the President to prescribe and
from time to time change the tolls; it provided “that no
tolls, when prescribed as above, shall be changed ” without
six months' notice; it provided that no tolls shall be levied
upon vessels engaged in the coastwise trade of the United
States. Further, the act provided:
When based upon net registered tonnage for ships of commerce, the
tolls shall not exceed $1.25 per net registered ton, nor be less, other than
for vessels of the United States and its citizens, than the estimated pro-
portionate cost of the actual maintenance and operation of the canal.
Then it goes on to say:
Nor be less than the equivalent of seventy-five cents per net registered
ton.
So that the President is authorized to impose tolls not ex-
ceeding $1.25 per net registered ton, except for vessels of the
United States and its citizens, and not less than seventy-five
cents per net registered ton, and is prohibited from imposing
any tolls upon vessels engaged in the coastwise trade of the
United States. He is required to impose tolls of at least
seventy-five cents per net registered ton upon all foreign
vessels. He is authorized to impose no tolls upon any Ameri-
can vessel, and is required to impose no tolls upon American
vessels engaged in the coastwise trade.
The President has issued a proclamation imposing tolls of
$1.20 per net registered ton upon vessels loaded, a smaller
amount upon vessels in ballast, and no tolls upon vessels en-
PANAMA CANAL TOLLS
243
gaged in American coastwise trade. A question has been
raised by Great Britain as to the conformity of that action
with a treaty made between the United States and Great
Britain in 1901, known as the Hay-Pauncefote Treaty. It is
claimed that that treaty requires that there shall be no dis-
crimination between the tolls imposed upon foreign vessels
and the tolls imposed upon vessels owned by citizens of the
United States.
The first thing which we naturally do when such a question
is presented is to inquire: What is our title? What are the
rights that we have ?
Until very recently the Isthmus of Panama was not the
property of the United States, and we had no rights there
except certain rights derived from an old treaty with New
Granada, made in 1846, by which New Granada gave to the
United States certain privileges in any lines of communica-
tion which might be constructed, either railroad or canal, but
gave the United States no right to construct a canal and no
property rights whatever.
How did we get the canal upon which we are proposing to
exact tolls? It was under a treaty made with the republic
of Panama, sometimes called the Hay-Bunau-Varilla Treaty.
It was signed at Washington on November 18, 1903. Under
that treaty with Panama, the owner of the Isthmus, by
article two-
granted to the United States in perpetuity the use, occupation, and
control of a zone of land and land under water, for the construction,
maintenance, operation, sanitation, and protection of said canal, of the
width of ten miles
and so forth. By article three it granted to the United
States all the rights, power, and authority which the
United States would possess and exercise if it were the
sovereign of the territory, to the exclusion of Panama. In
article eighteen it provided that -
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INTERNATIONAL SUBJECTS
The canal, when constructed, and the entrances thereto, shall be neutral
in perpetuity and shall be opened upon the terms provided for by section 1
of article 3 of, and in conformity with all the stipulations of, the treaty
entered into by the Governments of the United States and Great Britain
on November 18, 1901.
That treaty with Panama is the basis of our rights. That
treaty lies at the foundation of any question that can be
raised as to what we do with the canal which we are con-
structing, because it is by that treaty, and by that treaty
alone, that we get our title. By that treaty the grant of
property and jurisdiction upon which we have proceeded,
upon which we hold the canal, is subject to the provision that
the canal, when constructed, and the entrances thereto, shall
be neutral in perpetuity, and shall be opened upon the terms
provided for by the treaty between the United States and
Great Britain of November 18, 1901.
So the treaty with Great Britain which is referred to here is
carried into our title as a limitation upon it.
Let us turn to the treaty with Great Britain which is re-
ferred to by Panama in this grant. That treaty was signed
at Washington November 18, 1901. It recites that a con-
vention was considered expedient by the United States and
Great Britain --
to facilitate the construction of a ship canal to connect the Atlantic and
Pacific Oceans, by whatever route may be considered expedient, and to
that end to remove any objection which may arise out of the convention
of April 19, 1850, commonly called the Clayton-Bulwer Treaty ...
without impairing the “ general principle” of neutralization established
in article 8 of that convention.
It proceeds to say:
The canal may be constructed under the auspices of the Government
of the United States, either directly at its own cost, or by gift or loan of
money to individuals or corporations, or through subscription to or pur-
chase of stock or shares, and that, subject to the provisions of the present
treaty, the said Government shall have and enjoy all the rights incident
to such construction, as well as the exclusive right of providing for the
regulation and management of the canal.
PANAMA CANAL TOLLS
245
It then proceeds with article three:
The United States adopts as the basis of the neutralization of such ship
canal the following rules, substantially as embodied in the Convention of
Constantinople, signed October 28, 1888, for the free navigation of the
Suez Canal; that is to say:
1. The canal shall be free and open to the vessels of commerce and of
war of all nations observing these rules on terms of entire equality, so
that there shall be no discrimination against any such nation, or its citizens
or subjects, in respect of the conditions or charges of traffic or otherwise.
Such conditions and charges of traffic shall be just and equitable.
66
Rule 1, which I have just read, is the section 1 of article 3
of the treaty with Great Britain, which is specified in the
eighteenth article of our grant of title from Panama as being
especially and peculiarly and signally incumbent upon us to
observe. The canal," says the treaty with Panama,“ when
constructed, and the entrances thereto, shall be neutral in
perpetuity and shall be opened upon the terms provided for
by section 1 of article 3" of the treaty with Great Britain.
I have now read section 1 of article 3. There follows, then,
in article 3, a series of provisions relating specifically to the
kind of neutrality which shall be imposed. They are in sub-
stance these:
First. There shall be no blockade of the canal or act of war
in it or in its terminal waters.
Second. There shall be no delay in transit in time of war
by a belligerent.
Third. No troops or supplies in time of war shall be landed
or taken on by vessels in the canal.
Fourth. Belligerent ships shall remain but twenty-four
hours in the terminal waters.
Fifth. A war vessel of one belligerent shall not leave the
canal within twenty-four hours after the vessel of another
belligerent has left.
All of those are covered by the general provision of the
article in the treaty with Panama in these words:
246
INTERNATIONAL SUBJECTS
And in conformity with all the stipulations of the treaty entered into
by the Governments of the United States and Great Britain.
Under these provisions, first, of the Panama treaty, and,
second, of the treaty with Great Britain, which is incor-
porated into the grant of title to us, one question, and one
question only, is raised. That is: What is the measure of the
tolls that we are at liberty to charge a ship belonging to a
British or German or French citizen passing through the
canal ?
It is quite natural to say that this is a question of the ex-
emption of our ships. It is not a question of the exemption
of our ships. No one doubts our right to pass our ships
through the canal free, or for any tolls that we choose to
impose and that they are able and willing to pay. The ques-
tion is whether we are bound to take our treatment of the
ships belonging to American citizens as the measure of the
treatment that we accord to ships belonging to the citizens of
other countries.
We have the canal at the Sault, through which pass a
greater tonnage and a greater traffic than we can anticipate
for the Panama Canal for generations. We charge no tolls to
American vessels — that is to say, vessels owned by Ameri-
can citizens — passing through the canal at the Sault; and
by treaty we grant to the citizens of Great Britain and
Canada the same treatment we accord to our own citizens
and their vessels. We have agreed that the measure that we
mete to our own citizens shall be the measure we mete to the
citizens of Canada. There is no question there about our
rights with our own, and there is no 'question here about
our rights with our own.
Nor, Mr. President, is there any question here about the
absolute and complete control of the canal by the United
States. There is no question, there can be no question, about
it. Political control, military control, administrative control,
PANAMA CANAL TOLLS
247
all are ours. The only question is, What standard are we
bound to apply in making a charge to the citizens of another
country for the use of the canal for passing the ships through?
The treaty itself is quite clear. It says:
Subject to the provisions of the present treaty, the said Government
shall have and enjoy all the rights incident to such construction, as well
as the exclusive right of providing for the regulation and management of
the canal.
We occupy a variety of relations to that business. We
are the practical sovereign of the territory, and we have
all the rights of sovereignty in respect of the territory.
We are the owner of the canal just as a canal company
would be the owner if it had constructed it under a charter,
just as the Panama Railroad Company owns the Panama
Railroad. We shall be the owner of many ships that pass
through the canal. We owe protection to many citizens of
the United States who will own ships that pass through
the canal.
Those four different relations of the United States to this
business stand each by itself, and the rights and obligations
of each may be clearly ascertained and stated. Sometimes a
dual quality will effect an extinguishment of rights and obli-
gations, as, for instance, if the United States as the owner of a
ship sends its ship through a canal and is also the owner of
the canal, the obligation as owner of the ship to the owner
of the canal will be offset; but for any clear conception of
what the rights and obligations are, we must consider each
character in which the United States stands by itself.
It would be impossible to state more distinctly the precise
relation that we have in regard to the control of the canal
than Mr. Choate stated it in his letter of October 2, 1901, to
Mr. Hay, when the treaty was agreed upon. He said:
I am sure that in this whole matter, since the receipt by him of your
new draft, Lord Lansdowne has been most considerate and more than
248
INTERNATIONAL SUBJECTS
generous. He has shown an earnest desire to bring to an amicable settle-
ment, honorable alike to both parties, this long and important contro-
versy between the two nations. In substance, he abrogates the Clayton-
Bulwer Treaty, gives us an American canal ours to build as and where
we like, to own, control, and govern on the sole condition of its being
always neutral and free for the passage of the ships of all nations on equal
terms, except that if we get into a war with any nation we can shut its
ships out and take care of ourselves.
Nor is there any question here about ships owned by the
United States. There is much confusion in discussing this
subject, arising from the use of the term “ships of the United
States” or “ American ships.” The Senator from Mississippi
[Mr. Williams) called attention to that the other day very
pointedly. There are ships owned by the United States.
When the United States acquires the other character of
owner of the canal, of course there can be no question about
tolls on those ships; but ships owned by citizens of the
United States are quite a different thing. Citizens of the
United States are not the United States. They are separate
and distinct entities. We tax them, we regulate them, we
fine them, we impose charges upon them. If they acquire
property from the United States, they pay for it, and if the
United States acquires property from them, it pays for it.
They are entirely separate and distinct individuals from the
United States. The question here is about charges that shall
be made by the United States to two different classes of
separate and distinct individuals, both classes being the
owners of ships, one class being citizens of the United States
and the other class being citizens of some other country.
The words of this Hay-Pauncefote Treaty, Mr. President,
are framed to cover both a canal company and the United
States. Observe that article 2 of the Hay-Pauncefote
Treaty says:
It is agreed that the canal may be constructed under the auspices of
the Government of the United States, either directly at its own cost or
PANAMA CANAL TOLLS
249
by gift or loan of money to individuals or corporations, or through sub-
scription to or purchase of stock or shares, and that, subject to the pro-
visions of the present treaty, the said Government shall have and enjoy -
and so forth.
Now, there is a variety of contingencies to which the words
of this treaty are addressed, and you must construe the words
as they would apply to a canal company in which the Gov-
ernment of the United States had become a stockholder, as
it is of the Panama Railroad Company today, or the bonds of
which the United States has guaranteed, as it guaranteed the
bonds of the Pacific railroad companies. The fact that the
United States has stepped in and itself taken the character
of a canal company makes no difference whatever in the
meaning and force and interpretation and application of
these words. The treaty remains the same, the meaning of it
the same. The acquisition of additional and different rights
by the United States may arise merely to modify the effect of
the application of the treaty.
Nor, Mr. President, is there any question here about the
right of the United States to subsidize its own ships. That is
as clear and as unquestionable as its right to appropriate
money to put up a public building in the city of Washington.
It does not rest upon our assertion, for Sir Edward Grey, the
secretary of state for foreign affairs of Great Britain, in his
memorandum handed to our Secretary of State on Decem-
ber 9, 1912, says, commenting upon President Taft's memo-
randum accompanying the signature to the bill —
The President argues upon the assumption that it is the intention of
His Majesty's Government to place upon the Hay-Pauncefote Treaty an
interpretation which would prevent the United States from granting sub-
sidies to their own shipping passing through the canal, and which would
place them at a disadvantage as compared with other nations. This is
not the case. His Majesty's Government regard equality of all nations
as the fundamental principle underlying the treaty of 1901 in the same
way that it was the basis of the Suez Canal convention of 1888, and they
do not seek to deprive the United States of any liberty which is open
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INTERNATIONAL SUBJECTS
either to themselves or to any other nation; nor do they find either in
the letter or in the spirit of the Hay-Pauncefote Treaty any surrender by
either of the contracting powers of the right to encourage its shipping or
its commerce by such subsidies as it may deem expedient.
I take the line to be at the point where title to the money
vests in the United States. If the construction which I feel
forced to give to this treaty is a sound one, we are not at
liberty to produce the result of a subsidy to American ships
by relieving them of tolls which we impose upon other ships.
We are not at liberty to produce the effect of a subsidy in
that way; but the instant that the money paid for tolls be-
comes the property of the United States, becomes a part of
the general fund of the United States, the United States has
absolute and uncontrollable authority in the disposition of
that money. All lawyers are familiar with the distinction
between accomplishing an unlawful object in a lawful way
and accomplishing a lawful object in an unlawful way. To
subsidize American ships is lawful. However we may differ
about the policy, we have the power; we have the right; but
if the construction I give to this treaty is the correct one, we
have excluded ourselves by solemn covenant from accom-
plishing that lawful result in this particular way; and if it be
true that we have excluded ourselves from doing it in this
particular way, it is no answer to say the same result could
be accomplished in another way. In my view it is no concern
of ours why Great Britain chooses to insist upon our keeping
the covenant and not to produce the effect of a subsidy in
that particular way. If this construction of the treaty is
right, she has a right to say, “You shall not do that thing in
that way"; and if we made the covenant, it is none of our
affairs why she chooses to say it.
Now, upon what conflict of reasons rests the decision of the
question whether we are bound to regulate the tolls upon
foreign shipping by the tolls on American shipping ? The
PANAMA CANAL TOLLS
251
underlying question has been stated quite frequently as being
whether the words “ all nations” in rule 1 of article 3 include
the United States or not. Rule 1 reads:
The canal shall be free and open to the vessels of commerce and war of
all nations observing these rules on terms of entire equality.
I say that very often the subject has been discussed upon
the assumption that the answer to the practical question
raised depends upon whether the term “all nations” in-
cludes the United States or not. That does not get to the
foundation upon which the reasoning should rest. The
fundamental question is, What kind of equality did the
makers of this treaty intend ? Says the treaty:
The canal shall be free and open to all vessels of commerce and war
of all nations observing these rules on terms of entire equality.
When a French or a German ship sails into that canal and
has imposed upon it a toll, and says, “this toll is unequal be-
cause the vessel that passed here immediately before me was
allowed to go with a lower rate of toll,” can that be said, if
the vessel before was an American ship-
Mr. WILLIAMS. The ship of an American citizen.
Mr. Root. The ship of an American citizen; or can it be
said only if it was the ship of some foreign power ? What is
the “ entire equality" contemplated by rule 1 of article 3 of
this treaty ? Is it entire so that it assures equality in com-
parison with all ships engaged in the same trade similarly
situated, the same kind of trade, or is it partial, so as to be
equality in comparison only with certain ships engaged in the
same kind of trade and not applying to other ships engaged in
the same kind of trade, to wit, not applying to ships which are
owned by American citizens ? The rule proceeds:
So that there shall be no discrimination against any such nation or its
citizens or subjects in respect of the conditions or charges of traffic or
otherwise.
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INTERNATIONAL SUBJECTS
Is the kind of equality that is assured such that there will
be no discrimination, or that there will be no discrimination
except against the ships of other nations and in favor of ships
belonging to American citizens ?
Now, let us examine the question in the light of the circum-
stances which surrounded the making of this treaty and the
conditions under which it was made. Treaties cannot be use-
fully interpreted with the microscope and the dissecting
knife, as if they were criminal indictments. Treaties are
steps in the life and the development of great nations. Pub-
lic policies enter into them; public policies certified by public
documents and authentic expressions of public officers. Long
contests between the representatives of nations enter into the
choice and arrangement of the words of a treaty. If you
would be sure of what a treaty means, if there be any doubt,
if there are two interpretations suggested, learn out of what
conflicting public policies the words of the treaty had their
birth; what arguments were made for one side or the other,
what concessions were yielded in the making of a treaty.
Always, with rare exceptions, the birth and development of
every important clause may be traced by the authentic rec-
ords of the negotiators and of the countries which are recon-
ciling their differences. So it is the universal rule in all
diplomatic correspondence regarding international rights, in
all courts of arbitration, that far more weight is given to
records of negotiations, to the expressions of the negotiators,
to the history of the provisions than is customary in regard to
private contracts or criminal indictments.
This question as to the kind of equality that the makers of
this treaty intended to give, divides itself very clearly and
distinctly into a question between two perfectly well-known
expedients of treaty making; one is the favored-nation pro-
vision, with which we are all very familiar in commercial
treaties, and the other is the provision according to citizens of
PANAMA CANAL TOLLS
253
another country rights measured by the rights of the nationals
or citizens of the contracting country. The most-favored-na-
tion provision has its most common expression in the provi-
sion regarding tariff duties, a provision that no higher duties
shall becharged upon goods imported from one foreign country
than upon goods imported from other foreign countries. That
is the common “ most-favored-nation clause.'
The other has its probably most common provision in the
laws relating to the treatment of vessels in the ports of a con-
tracting country, assuring to them that no higher tolls or
charges, harbor dues or light dues, or dues of that description
shall be charged against them than against the vessels of the
country in which the port is situated.
This question here is between those two. I cannot better
illustrate the two kinds I have mentioned than by referring
to the treaty with the Argentine Republic in 1853, a typical
treaty of friendship, commerce, and navigation. Before I
read from it, I will state what is an almost universal custom
among civilized nations in regard to the use of these two
standards of comparison for the purpose of assuring one or
another kind of equality. It is the practically universal cus-
tom, where the citizens of another country bear the same
relation to a particular anticipated transaction or course of
business, that the citizens of the contracting country bear, in
treaties of peace and friendship and amity, to accord to
citizens of the other country equality measured by the treat-
ment of the citizens of the contracting country; and, in
general, it is only when the citizens of the other country bear
a different relation to the anticipated transaction or course of
business, that recourse is had to the favored-nation clause, as
where the people of one country are exporting goods and the
people of the contracting country are importing goods.
Plainly you cannot give to the exporter the same treatment
you give to the importer; they are two different classes.
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INTERNATIONAL SUBJECTS
Let me illustrate that by referring to the Argentine treaty:
ARTICLE 2. There shall be between all the territories of the United
States and all the territories of the Argentine Confederation a reciprocal
freedom of commerce. The citizens of the two countries, respectively,
shall have liberty, freely and securely, to come with their ships and car-
goes to all places, ports, and rivers in the territories of either, to which
other foreigners, or the ships or cargoes of any other foreign nation or
state, are, or may be, permitted to come.
ARTICLE 3. The two high contracting parties agree that any favor,
exemption, privilege, or immunity, whatever, in matters of commerce and
navigation, which either of them has actually granted, or may hereafter
grant, to the citizens or subjects of any other government, nation, or state,
shall extend, in identity of cases and circumstances, to the citizens of the
other contracting party.
ARTICLE 4. No higher or other duties shall be imposed on the importa-
tion into the territories of either of the two contracting parties of any
article of the growth, produce, or manufacture of the territories of the
other contracting party than are, or shall be, payable on the like article
of any other foreign country.
Those are favored-nation clauses. Article 5 provides:
No other or higher duties or charges, on account of tonnage, light, or
harbor dues, pilotage, salvage in case of average or shipwreck, or any
other local charges, shall be imposed in the ports of the two contracting
parties on the vessels of the other than those payable in the same ports on
its own vessels.
There is the higher type of equality, because the ships coming
into an American port have the same relation to that port,
whether they belong to an Argentine citizen or to an
American.
ARTICLE 6
The same duties shall be paid, and the same drawbacks and bounties
allowed, upon the importation or exportation, of any article into or from
the territories of the United States or into or from the territories of the
Argentine Confederation whether such importation or exportation be made
in vessels of the United States or in vessels of the Argentine Confederation.
ARTICLE 8
All merchants, commanders of ships, and others, citizens of the United
States, shall have full liberty in all the territories of the Argentine Con-
PANAMA CANAL TOLLS
255
federation to manage their own affairs themselves or to commit them to
the management of whomsoever they please as broker, factor, agent, or
interpreter; nor shall they be obliged to employ any other persons in those
capacities than those employed by citizens of the Argentine Confedera-
tion.
ARTICLE 9
In whatever relates to the police of the ports, the lading and unlading
of ships, the safety of the merchandise, goods and effects, and to the
acquiring and disposing of property of every sort and denomination, either
by sale, donation, exchange, testament, or in any other manner whatsoever,
as also to the administration of justice, the citizens of the two contracting
parties shall reciprocally enjoy the same privileges, liberties, and rights
as native citizens.
And so on through a great number of other provisions. In
brief, a careful examination shows this to be a fact: that it
is the universal rule, with rare exceptions, that wherever
the rights of the citizens of a contracting country can be
made the standard of equality for the citizens of another
country they are made so, and that recourse is not had to
the most-favored-nation clause, except where that higher
degree of equality is impossible because the citizens of the
two countries occupy different relations to the business that
is contemplated.
So we have the question between these two kinds of
equality clearly drawn and resting upon long experience of
nations, a subject fully understood by the negotiators of this
treaty upon both sides.
We know now that the negotiators of this treaty, the men
who made it, all understood that the larger equality was in-
tended by its terms. Of course, what the negotiator of a
treaty says cannot be effective to overthrow a treaty; but
I think we must all start, in considering this question, with
the assumption that the words are capable of two construc-
tions. I think no one can deny that, in view of the differences
of opinion which have been expressed here regarding their
meaning. So here are words capable of two constructions, a
256
INTERNATIONAL SUBJECTS
broad construction and a narrow construction, but the fact
that all the makers of the treaty intended that the words they
used should have the larger effect, is certainly very persuasive
toward the conclusion that those words should receive the
larger effect. Not only the American negotiators but the
British negotiators as well so understood it. Whenever we
seek to impose upon these words a narrower construction for
our own interests than the makers of the treaty understood
them to have, we should remember the fundamental rule of
morals that a promisor is bound to keep a promise in the
sense in which he had reason to believe the promisee under-
stood it was made.
Let us look at the understanding of the negotiators. Mr.
Choate writes this in a letter to Honorable Henry White,
dated April 14, 1914:
As I telegraphed to you last night, on receipt of your telegram of
yesterday, I wrote to the chairman of the committee, Senator O'Gorman,
inclosing to him, by the express permission of the Secretary of State, a
copy of my letters to Secretary Hay between August 3, and October 12,
1901, the same that you have. To my mind they establish beyond ques-
tion the intent of the parties engaged in the negotiation, that the treaty
should mean exactly what it says, and excludes the possibility of any
exemption of any kind of vessels of the United States. Equality between
Great Britain and the United States is the constant theme, and especially
in last letter of October 2, 1901, where I speak of Lord Lansdowne's
part in the matter, and say, “He has shown an earnest desire to bring
to an amicable settlement, honorable alike to both parties, this long and
important controversy between the two nations. In substance, he abro-
gates the Clayton-Bulwer Treaty, gives us an American canal, ours to build
as and where we like, to own, control, and govern, on the sole condition of
its being always neutral and free for the passage of the ships of all nations
on equal terms, except that if we get into a war with any nation we can
shut its ships out and take care of ourselves."
This was the summing-up of our whole two months' negotiation.
my
Mr. Henry White's understanding of it is shown in the
testimony before the Committee on Interoceanic Canals,
April 14, 1914. He says:
PANAMA CANAL TOLLS
257
During the entire period of those negotiations and in all of my conver-
sations with Lord Salisbury or with any one else on either side of the
Atlantic I never heard the subject of our coastwise traffic mentioned. It
was always assumed by those carrying on the negotiations - it certainly
was by me in my interview with Lord Salisbury — that he meant that our
ships should be considered, or rather that the United States should be
considered, as included in the term “all nations.”
Senator SIMMONS. And our coastwise ships ?
Mr. WHITE. All ships.
The CHAIRMAN. You are stating now what your understanding is,
not what the language was ?
Mr. WHITE. No; my understanding. The language was “ships of
all nations on equal terms.” That was the language used by Lord Salis-
bury, which I cabled the same day to Mr. Hay. Mr. Hay had asked Lord
Salisbury to remove such obstacles in the Clayton-Bulwer Treaty as stood
in the way of our building the canal, and his reply was that he had no
doubt these obstacles would eventually be removed, provided the ships
of all nations should go through the canal on equal terms.
Senator SIMMONS. Do I understand you to say you had suggestions
from any direction that our coastwise ships were to be treated differently ?
Mr. WHITE. Never from beginning to end.
We know from many sources what Mr. Hay's views were.
The Senator from Connecticut (Mr. McLean) has read to you
a statement of them, authentic, made about the time of the
treaty, at the time the treaty with Panama was under con-
sideration. Here is what Mr. Hay says:
All means all. The treaty was not so long that we could not have
made room for the word 'other' if we had understood that it belonged
there. All nations' means all nations, and the United States is certainly
a nation."
“That was the understanding between yourself and Lord Pauncefote
when you and he made the treaty ?” I pursued.
“It certainly was," he replied. “It was the understanding of both
Governments, and I have no doubt that the Senate realized that in ratify-
ing the second treaty without such an amendment it was committing us
to the principle of giving all friendly nations equal privileges in the canal
with ourselves. That is our golden rule."
I cannot pass from this subject without also calling atten-
tion to the language used by President Roosevelt in his
258
INTERNATIONAL SUBJECTS
1
message to the Senate, upon which the Panama treaty was
ratified. President Roosevelt said in this message of January
4, 1904, laying before Congress the Panama treaty:
The proper position for the United States to assume in reference to this
canal, and therefore to the Governments of the Isthmus, had been clearly
set forth by Secretary Cass in 1858. In my annual message I have already
quoted what Secretary Cass said; but I repeat the quotation here, because
the principle it states is fundamental:
While the rights of sovereignty of the states occupying this region
(Central America) should always be respected, we shall expect that these
rights be exercised in a spirit befitting the occasion and the wants and
circumstances that have arisen. Sovereignty has its duties as well as its
rights, and none of these local governments, even if administered with
more regard to the just demands of other nations than they have been,
would be permitted in a spirit of Eastern isolation to close the gates of
intercourse on the great highways of the world and justify the act by the
pretension that these avenues of trade and travel belong to them and
that they choose to shut them, or, what is almost equivalent, to encumber
them with such unjust relations as would prevent their general use.
The principle thus enunciated by Secretary Cass was sound then and
it is sound now. The United States has taken the position that no other
Government is to build the canal. In 1889, when France proposed to
come to the aid of the French Panama Company by guaranteeing their
bonds, the Senate of the United States in executive session, with only some
three votes dissenting, passed a resolution, as follows:
That the Government of the United States will look with serious con-
cern and disapproval upon any connection of any European Government
with the construction or control of any ship canal across the Isthmus of
Darien or across Central America, and must regard any such connection
or control as injurious to the just rights and interests of the United States
and as a menace to their welfare."
Under the Hay-Pauncefote Treaty it was explicitly provided that the
United States should control, police, and protect the canal which was to
be built, keeping it open for the vessels of all nations on equal terms.
The United States thus assumed the position of guarantor of the canal
and of its peaceful use by all the world.
Who were these men ? Certainly, any one who finds in this
treaty now a meaning different from that which they thought
their words carried, should consider many times the steps by
which he reaches his conclusion.
PANAMA CANAL TOLLS
259
Mr. Choate, the head of the American bar, clear, able, with
penetrating intelligence, with vast experience in the use of
words and the construction of treaties, of statutes, of con-
tracts, unquestionable in the virile strength and loyalty of his
Americanism. When he thought that the words he used had
a particular meaning, we may well think twice before we say
that they have not that meaning.
Henry White, one of the few diplomats trained from their
youth up in the American service.
John Hay, the pride of our generation in American diplo-
macy. John Hay, that sensitive soul who could produce the
American types of the Pike County ballads, and the charm,
the felicity of whose phrases makes them jewels in the history
of American literature. John Hay, who received the spirit,
the motive, the characteristics of his Americanism as the
young secretary and the confidential and intimate friend of
Lincoln.
Theodore Roosevelt, with his swift, incisive mind and his
high courage.
All these — the chargé d'affaires who opened the negotia-
tions with Lord Salisbury, the ambassador who carried on the
negotiations, the Secretary of State who supervised and au-
thorized the negotiations, the President who authorized, as
one of the first acts of his presidency, the signature to the
treaty and laid it before the Senate — all these understood
that they were making a treaty with the largest equality, and
with no trifling, narrow, “favored nation
“ favored nation” provision.
Indeed, sir, the “favored nation" clause is of but little
value. If the standard of equality be not the standard of the
treatment of ships owned by American citizens, and be
nothing but the “favored nation” standard
standard — that is,
equality as between foreigners - it is of but very little value.
That equality would be practically compelled by the usages
of civilization without any treaty at all. No nation could
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INTERNATIONAL SUBJECTS
ever maintain a practice of charging for the use of a canal
connecting two oceans a different rate of tolls as against Ger-
mans or French or English or Italians. It never has been
done anywhere in the world. It never will be done unless
civilization goes back from the level which it has now
reached. But the other, the larger, equality is of value; for
the treatment of the citizens of the country which owns the
canal, the treatment they will submit to, the treatment that
it is safe to accord to them before election, is a safe and a
sound, substantial guaranty of the treatment the citizens of
other nations will receive; so that is of value.
Mr. President, of course what these negotiators all thought
they were doing by the use of these words is not conclusive.
It is persuasive, but not conclusive. Let us ascertain why
they thought so, if we can.
The first reason why it seems to me they could not possibly
have meant anything else than they say they meant, is that
for three-quarters of a century the United States had been
declaring to the world that she sought to procure the making
of the canal across the Isthmus as a public-service work, a
public calling, a public utility, with all the nations the public
to be served. I say, for three-quarters of a century the
United States had been making that declaration as to her
relation to this work; yes, always without one varying note,
until we got the title and control of the canal; and then for
the first time is heard the demand that American owners of
ships shall receive better treatment in tolls than the ships
of other owners.
Now, let me call attention to some of the declarations.
You have read them all; they are not new in this debate; but
I beg you to consider them as a whole and consider the posi-
tion in which we stand with reference to them as a series
unbroken and unvarying. In 1826, Henry Clay, Secretary
of State, said:
PANAMA CANAL TOLLS
261
If a canal across the Isthmus be opened so as to admit of the passage
of sea vessels from ocean to ocean, the benefits of it ought not to be exclu-
sively appropriated to any one nation, but should be extended to all parts
of the globe upon the payment of a just compensation or reasonable tolls.
In a resolution of the Senate in 1835:
The construction of a ship canal across the Isthmus which connects
North and South America, and of securing forever by such stipulations
the free and equal right of navigating such canal to all such nations
is recommended as the subject of negotiation, “free and
equal right to all such nations."
In a resolution of the House in 1839:
For the purpose of ascertaining the practicability of effecting a com-
munication between the Atlantic and Pacific Oceans by the construction
of a ship canal across the Isthmus and of securing forever, by suitable
treaty stipulations, the free and equal right of navigating such canal to
all nations
is recommended.
In the overtures by the United States to Great Britain
which resulted in the making of the Clayton-Bulwer Treaty
Mr. Rives said to Lord Palmerston in 1849:
That the United States sought no exclusive privilege or preferential
right of any kind in regard to the proposed communication, and their
sincere wish, if it should be found practical, was to see it dedicated to the
common use of all nations on the most liberal terms and a footing of
perfect equality for all.
That the United States would not if they could obtain any exclusive
right or privilege in a great highway which naturally belongs to all man-
kind.
In the Clayton-Bulwer Treaty of 1859, article 6, we find
And the contracting parties -
the United States and Great Britain -
likewise agree that each shall enter into treaty stipulations with such of
the Central American states as they may deem advisable, for the purpose
of more effectually carrying out the great design of this convention,
namely, that of constructing and maintaining the said canal as a ship
communication between the two oceans for the benefit of mankind, on
equal terms to all, and of protecting the same.
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INTERNATIONAL SUBJECTS
In 1858, Secretary Cass, in the utterance which I have just
read from the January 4, 1904, message of President Roose-
velt.
In 1881, Secretary Blaine. Mr. President, this utterance
is of special significance, because it was the first serious over-
ture to Great Britain to bring about that abrogation of the
Clayton-Bulwer Treaty and the substitution of a canal under
the sole auspices of the United States, which has been realized
in the Hay-Pauncefote Treaty. Mr. Blaine, on June 24, 1881,
writes to the American minister to open negotiations with
Great Britain for obviating the objections in the Clayton-
Bulwer Treaty. He says:
There has never been the slightest doubt on the part of the United
States as to the purpose or extent of the obligation then assumed
that is, in the Colombian treaty of 1846 -
by which it became surety alike for the free transit of the world's com-
merce over whatever land-way or water-way might be opened from sea
to sea, and for the protection of the territorial rights of Colombia from
aggression or interference of any kind.
He then proceeds to say that the President deems it due to
frankness to suggest a new arrangement with Great Britain.
He says:
Nor, in time of peace, does the United States seek to have
any
exclusive
privileges accorded to American ships in respect to precedence or tolls
through an interoceanic canal any more than it has sought like privileges
for American goods in transit over the Panama Railway, under the exclu-
sive control of an American corporation. The extent of the privileges of
American citizens and ships is measurable under the treaty of 1846 by
those of Colombian citizens and ships. It would be our earnest desire and
expectation to see the world's peaceful commerce enjoy the same just,
liberal, and rational treatment.
In the following letter of November 19, 1881, he lays down
the policy of the United States almost exactly as it was
worked out by the negotiators in the Hay-Pauncefote Treaty
now in existence. He lays it down to Great Britain, and this
PANAMA CANAL TOLLS
263
!
utterance of Secretary Blaine was the main expression of
American policy which Mr. Hay, Mr. White, Mr. Choate,
and Mr. Roosevelt found before them to follow in making
this, treaty. Let me read it:
In assuming as a necessity the political control of whatever canal or
canals may be constructed across the Isthmus, the United States will act
in entire harmony with the Governments within whose territory the
canals shall be located. Between the United States and the other Ameri-
can republics there can be no hostility, no jealousy, no rivalry, no distrust.
This Government entertains no design in connection with this project for
its own advantage which is not also for the equal or greater advantage
of the country to be directly and immediately affected. Nor does the
United States seek any exclusive or narrow commercial advantage. It
frankly agrees and will by public proclamation declare at the proper time,
in conjunction with the republic on whose soil the canal may be located,
that the same rights and privileges, the same tolls and obligations for the
use of the canal, shall apply with absolute impartiality to the merchant
marine of every nation on the globe. And equally in time of peace
the
harmless use of the canal shall be freely granted to the war vessels of
other nations. In time of war, aside from the defensive use to be made
of it by the country in which it is constructed and by the United Siates,
the canal shall be impartially closed against the war vessels of all
belligerents.
It is the desire and determination of the United States that the canal
shall be used only for the development and increase of peaceful commerce
among all the nations, and shall not be considered a strategic point in
warfare which may tempt the aggression of belligerents or be seized under
the compulsions of military necessity by any of the great powers that may
have contests in which the United States has no stake and will take no
part.
Mr. Blaine went out of office; other interests arose — the
Venezuelan controversy with Great Britain, the progress of
construction by the De Lesseps Company, which seemed for
a time to bid fair to produce a canal across the Isthmus of
Panama, the Spanish War, all intervened, and these negotia-
tions languished and were intermitted until Mr. Hay, in 1898,
reopened the subject with this declaration of Mr. Blaine still
standing, declaring what the United States would do if
England would give to her the same sole control which she
264
INTERNATIONAL SUBJECTS
did give in the Hay-Pauncefote Treaty. How could the nego-
tiators intend anything else in the words they used than that
same large equality which the United States had thus already
offered formally and solemnly ?
In 1885, in his message of December 8, Mr. Cleveland says
to Congress:
Whatever highway may be constructed across the barrier dividing the
two greatest maritime areas of the world must be for the world's benefit
a trust for mankind, to be removed from the chance of domination by
any single power, nor become a point of invitation for hostilities or a prize
for warlike ambition.
In 1898, Mr. Hay, in reopening the negotiations which Mr.
Blaine had begun, instructs Mr. White to say:
The President thinks it is more judicious to approach the British
Government in a frank and friendly spirit of mutual accommodation, and
to ask whether it may not be possible to secure such modification of the
provisions of the Clayton-Bulwer Treaty as to admit such action by the
Government of the United States as may render possible the accomplish-
ment of a work which will be for the benefit of the entire civilized world.
The President hopes he may take it for granted that the British Govern-
ment not only have no wish to prevent the accomplishment of this great
work, but that they feel a lively interest in it and appreciate the fact that
the benefits of its successful achievement will be to the advantage not
only of England and America but of all commercial nations.
We know that the answer to that by Lord Salisbury was
that he would be favorable to such a modification of the
treaty relations, provided that the vessels of all nations could
use the canal on terms of equality.
In the year 1900, when the first Hay-Pauncefote Treaty
came before the Senate, the report of the Committee on
Foreign Relations, commonly spoken of as the Davis report,
a very able, very thorough, very careful consideration of the
whole subject, says:
It is not reasonable to suppose that Nicaragua and Costa Rica would
grant to the United States the exclusive control of a canal through those
States on terms less generous to the other maritime nations than those
prescribed in the great act of October 28, 1888;
PANAMA CANAL TOLLS
265
referring to the Suez Canal convention
or if we could compel them to give us such advantages over other nations
it would not be creditable to our country to accept them.
That our Government or our people will furnish the money to build
the canal presents the single question whether it is profitable to do so.
If the canal, as property, is worth more than its cost, we are not called
on to divide the profits with other nations. If it is worth less and we are
compelled by national necessities to build the canal, we have no right to
call on other nations to make up the loss to us. In any view, it is a ven-
ture that we will enter upon if it is to our interest, and if it is otherwise
we will withdraw from its further consideration.
The Suez Canal makes no discrimination in its tolls in favor of its
stockholders; and, taking its profits or the half of them as our basis of
calculation, we will never find it necessary to differentiate our rates of
toll in favor of our own people in order to secure a very great profit on
the investment.
In 1904, in the message of President Roosevelt from which
I have already read, submitting the Hay-Pauncefote Treaty
to the Senate, is the last authoritative and unmistakable
declaration of the public service for all the world which the
United States undertook in building the Panama Canal.
Now, Mr. President, the common law of England and
America, the public policy especially of America at the very
time this treaty was being negotiated, enforced with unspar-
ing rigor the duty of equal charges and equal service by all
public utilities to all the public which they were to serve, and
in the face of this long series of public declarations by the
Government of the United States committing itself to that
relation, the relation of the builder and operator of a public
utility for all the world, the makers of this treaty could not
honorably have used words with any other meaning than the
meaning of the large equality which they say they meant
these words should have.
There is another reason. The kind of equality which the ne-
gotiators intended - that is, an equality in which the treat-
ment of American citizens is made the standard for the
266
INTERNATIONAL SUBJECTS
may
treatment of foreign citizens — had during all the history of
the Isthmian Canal efforts been the standard sought for in
negotiations and treaties. That kind of equality was the
standard adopted by the public policy of the United States
for all similar enterprises. It was customary; it was uniform;
it was natural for negotiators of a treaty relating to a canal.
Let me illustrate that by referring to the initial treaty on this
subject, the treaty of New Granada of 1846. When the
American negotiators making that treaty dealt with the sub-
ject of a railroad and canal, what kind of equality did they
stipulate for ? Why, this:
The Government of New Granada guarantees to the Government
of the United States that the right of way or transit across the Isthmus of
Panama upon any modes of communication that now exist, or that
be hereafter constructed, shall be open and free to the Government and
citizens of the United States, and for the transportation of any articles of
produce, manufactures, or merchandise of lawful commerce belonging to
the citizens of the United States; that no other tolls or charges shall be
levied or collected upon the citizens of the United States or their said
merchandise thus passing over any road or canal that may be made by
the Government of New Granada or by the authority of the same than is,
under like circumstances, levied upon and collected from the Granadian
citizens.
The message of President Polk transmitting this New Gra-
nada treaty of 1846 to Congress dwells especially upon the
assurance to citizens of the United States of equal charges
and equal facilities in the use of railroad and canal with
citizens of New Granada.
I
go back again to the Clayton-Bulwer Treaty of 1850.
There is no doubt about the kind of equality which the nego-
tiators considered it to be valuable to get, useful to get,
natural to get.
Article 1 of that treaty provides that neither Government
shall undertake any control or make any fortifications, make
any effort" for the purpose of acquiring or holding, directly
or indirectly, for the citizens or subjects of the one, any
PANAMA CANAL TOLLS
267
rights or advantage in regard to commerce or navigation
through the said canal which shall not be offered on the same
terms to the citizens or subjects of the other."
Article 5 provides that protection may be withdrawn if the
company which builds the canal shall make “unfair dis-
criminations in favor of the commerce of one of the contract-
ing parties over the commerce of the other."
Article 6 uses as interchangeable terms the expression “ on
equal terms to all," and these provisions for measuring the
rights of the citizens of one country by the rights accorded to
the citizens of the other. They are used interchangeably.
Article 8 provides that
It is always understood by the United States and Great Britain that
the parties constructing or owning the canal shall impose no other charges
or conditions of traffic thereupon than the aforesaid Governments shall
approve of as just and equitable, and that the same canals or railways,
being open to the citizens and subjects of the United States and Great
Britain on equal terms, shall also be open on like terms to the citizens and
subjects of every other state.
You will perceive, sir, that the terms on which citizens of
other countries were to be allowed to come in were not terms
of the most-favored nations as among themselves. They
were on like terms with those which existed between Great
Britain and the United States; that is to say, each other
country which came in and adhered to this Clayton-Bulwer
Treaty was to have the rights of its citizens measured by the
rights accorded to the citizens of the United States and to the
citizens of Great Britain.
In our treaty with Great Britain in 1854, the reciprocity
treaty of 1854 —
It is agreed that the citizens and inhabitants of the United States shall
have the right to navigate the River St. Lawrence, and the canals in
Canada used as the means of communicating between the Great Lakes
and the Atlantic Ocean, with their vessels, boats, and crafts, as fully and
freely as the subjects of Her Britannic Majesty, subject only to the same
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INTERNATIONAL SUBJECTS
tolls and other assessments as now are, or may hereafter be, exacted of
Her Majesty's said subjects. ...
It is further agreed that British subjects shall have the right freely to
navigate Lake Michigan with their vessels, boats, and crafts so long as
the privilege of navigating the River St. Lawrence, secured to American
citizens by the above clause of the present article, shall continue; and
the Government of the United States further engages to urge upon the
State governments to secure to the subjects of Her Britannic Majesty
the use of the several State canals on terms of equality with the inhabitants
of the United States.
We made a treaty with Nicaragua in 1867, under which,
then expecting the canal to be through Nicaraguan territory,
it was provided that —
The republic of Nicaragua hereby grants to the United States, and
to their citizens and property, the right of transit between the Atlantic
and Pacific Oceans through the territory of that republic, on any route
of communication, natural or artificial, whether by land or by water,
which may now or hereafter exist or be constructed under the authority
of Nicaragua, to be used and enjoyed in the same manner and upon equal
terms by both republics and their respective citizens.
That treaty further provided:
And no higher or other charges or tolls shall be imposed on the con-
veyance or transit of persons and property of citizens or subjects of the
United States, or of any other country, across the said routes of communi-
cation, than are or may be imposed on the persons and property of citizens
of Nicaragua.
In 1868, Mr. Seward made a treaty with Colombia, which
was never ratified, in which the provision originally proposed
by the United States was:
That the tariff of tolls and freights shall be on the basis of perfect
equality for both nations and for all other nations who shall be at peace
both with the United States of America and the United States of Colombia.
Colombia wished that provision to apply to both times of
war and of peace; and accordingly it was modified and came
into the completed treaty, which was submitted to the Senate
in this form:
PANAMA CANAL TOLLS
269
The Government of the United States of America shall establish a
tariff of tolls and freights for the said canal on a basis of perfect equality
for all nations, whether in time of peace or war.
In 1870, another treaty was made with Colombia, in which
the provision was that the United States was to establish,
just as it does here in the Hay-Pauncefote Treaty, a tariff of
charges on merchant vessels and vessels of war upon the
basis of perfect equality at all times among all nations, with
no other distinctions than are contained in the preceding
article.
In the preceding article the distinction is that the parties to
the treaty - that is, Colombia and the United States - re-
serve to themselves the right of passing ships of war, troops,
and munitions of war through the canal at all times free of
charge of any description.
In 1871, in the great Treaty of Washington of that year,
we enlarged the stipulation regarding the use of American
and Canadian canals, and the United States stipulated defi-
nitely that
The subjects of Her Britannic Majesty shall enjoy the use of the St.
Clair Flats Canal on terms of equality with the inhabitants of the United
States.
We have heard much discussion here of the controversy
which arose between the United States and Great Britain
over the application of that paragraph of the Treaty of Wash-
ington giving equality to citizens of the two countries in the
use both of American and Canadian canals. Several times
the discussion has run into an attack upon the Canadian
treatment of the subject, into a declaration that Canada did
not yield gracefully or easily; that Canada did not yield until
measures of retaliation were proposed. That is quite irrele-
vant to the bearing of this treaty and the discussion upon the
question that is before us and upon the treatment of this
subject by the makers of this treaty.
270
INTERNATIONAL SUBJECTS
What position did we take ? What was the attitude of the
United States toward the subject of equality between the
United States and Canada under this treaty stipulating for
equality ? That is the important question not whether
Great Britain was right or wrong; not whether Canada did
right or wrong; not whether they were willing or unwilling;
but what did the United States say and what position could
the United States take consistently upon this subject of the
equal use of the canals ?
We are not left entirely to the treatment of canals for a
guide as to the public policy of the United States. When
this treaty was negotiated it had long been the general public
policy of the United States to accord to all other nations in all
ports and waters of the United States rights in respect of serv-
ice and of charges, measured by the service and the charges to
American citizens. The act of Congress of June 26, 1884, as
amended June 19, 1886, reads:
Provided, That the President of the United States shall suspend the
collection of so much of the duty herein imposed on vessels entered from
any foreign port as may be in excess of the tonnage and lighthouse dues
or other equivalent tax or taxes imposed in said port on American vessels
by the Government of the foreign country in which such port is situated,
and shall, upon the passage of this act, and from time to time thereafter,
as often as it may become necessary by reason of changes in the laws of
the foreign countries above mentioned, indicate, by proclamation, the
ports to which such suspension shall apply, and the rate or rates of ton-
nage duty, if any, to be collected under such suspension: Provided further,
That such proclamation shall exclude from the benefits of the suspension
herein authorized the vessels of any foreign country in whose ports the
fees or dues of any kind or nature imposed on vessels of the United States
or the import or export duties on their cargoes are in excess of the fees,
dues, or duties imposed on the vessels of the country in which such port
is situated, or on the cargoes of such vessels.
I
say that was the public policy of the United States re-
garding all ports and waters of the United States, and it was a
policy toward all the world. A controversy arose about it.
Canada claimed that we imposed excessive charges upon her
PANAMA CANAL TOLLS
271
vessels, and we claimed that she imposed excessive charges
upon ours. A correspondence ensued, and on February 18,
1896, Mr. Olney, then Secretary of State, wrote to Sir Julian
Pauncefote as follows:
The understanding of the Government of the United States in the
matter of the uniform treatment of foreign and domestic vessels is that
charges on foreign vessels in the ports of the United States should be no
higher than those imposed on vessels of the United States in the ports of
this country, and that the charges imposed on American vessels in foreign
ports should be no higher than the charges imposed on the vessels native
to those ports. This is the practice of this Government, and it is in accord
with nearly all of its treaties of commerce and navigation with foreign
powers.
The fact cited in the Canadian minute that the charges of this Govern-
ment on lake ports are larger than those imposed by the Dominion authori-
ties will, upon more mature reflection, I am confident, be regarded as
irrelevant, since those charges are imposed equally on American and
foreign vessels.
On the ninth of June of the same year Sir Julian Pauncefote
replied to Mr. Olney as follows:
SIR: With reference to my note of the twenty-first of February last, and
to previous correspondence respecting the alleged discrimination against
United States vessels in Canadian ports on the Great Lakes, I have the
honor to inform you that the Governor-General of Canada has approved
a minute of his privy council, recommending the revocation of the
regulations complained of and the abolition of all fees hitherto exacted
from vessels navigating inland waters when entering or clearing above
Montreal.
That Sir Julian Pauncefote was the Lord Pauncefote who,
with Mr. Hay and Mr. White, negotiated the Hay-Paunce-
fote Treaty. We are asked to believe that starting with the
Clayton-Bulwer convention, which gave to Great Britain
unquestioned assurance of the larger and more valuable
equality of her vessels with the vessels of American citizens,
in a negotiation with a country which in all its history had
insisted regarding all canals that the measure of equality
should be the measure of service and of charges to its national
272
INTERNATIONAL SUBJECTS
citizens, in negotiating with a country which had just com-
pelled him to yield that equality of treatment as a measure
of general public policy, he abandoned the vantage ground
of the Clayton-Bulwer Treaty and gave up that basis of
equality without one word in the negotiation, without dis-
cussion, without its being asked, without its being mentioned,
without his knowing it, without the other negotiators'
knowing it. But that is not all.
It was not merely the immemorial policy of the United
States and Great Britain regarding all canals; it was not
merely the general public policy of the United States and
Great Britain regarding all ports and waters, but it was the
policy of the United States regarding trade the world over,
and the champion and protagonist of that policy was John
Hay. At the very time that he was negotiating the Hay-
Pauncefote Treaty he was appealing to the justice of all the
nations of the world for the “open door " in China; he was
appealing to them in the interest of the world's commerce,
in the interest of civilization to accord in all their possessions
in China, what? Favored-nation treatment? Oh, no; the
same treatment that they accorded to their own citizens.
Let me ask you to attend for a moment to things that John
Hay wrote regarding this great design, the accomplishment
of which will ever stand in the history of diplomacy as one of
the proudest contributions of America to the progress of
civilization. On September 6, 1899, he wrote to Mr. Choate
in London:
The Government of Her Britannic Majesty has declared that its policy
and its very traditions precluded it from using any privileges which might
be granted it in China as a weapon for excluding commercial rivals, and
that freedom of trade for Great Britain in that Empire meant freedom of
trade for all the world alike. While conceding by formal agreements, first
with Germany and then with Russia, the possession of "spheres of in-
fluence or interest " in China, in which they are to enjoy special rights
and privileges, more especially in respect of railroads and mining enter-
PANAMA CANAL TOLLS
273
prises, Her Britannic Majesty's Government has therefore sought to
maintain at the same time what is called the open-door policy” to
insure to the commerce of the world in China equality of treatment within
said “spheres ” for commerce and navigation.
He wrote to Ambassador White in Germany, September
sixth, the same date:
Earnestly desirous to remove any cause of irritation and to insure at
the same time to the commerce of all nations in China the undoubted
benefits which should accrue from a formal recognition by the various
powers claiming “spheres of interest” that they shall enjoy perfect
equality of treatment for their commerce and navigation within such
spheres ” the Government of the United States would be pleased to see
His German Majesty's Government give formal assurances and lend its
coöperation in securing like assurances from the other interested powers
that each within its respective sphere of whatever influence.
Third. That it will levy no higher harbor dues on vessels of another
nationality frequenting any port in such "sphere” than shall be levied
on vessels of its own nationality, and no higher railroad charges over lines
built, controlled, or operated within its “ sphere ” on merchandise belong-
ing to citizens or subjects of other nationalities transported through such
“sphere " than shall be levied on similar merchandise belonging to its
own nationals transported over equal distances.
So he wrote to all of the great nations of the world an
appeal for equal treatment, an appeal for a specific stipula-
tion to secure the equal treatment that no higher charges
should be imposed upon the citizens of any other country
in the ports and waters possessed by those great powers in
China or for freight or passage over the railroads built and
controlled by them than were imposed upon their own citi-
zens. To that appeal all the great powers of the world re-
sponded in affirmance; and on March 20, 1900, Mr. Hay was
able to issue his circular of instructions to all the ambassadors
and ministers of the United States announcing the universal
assent of the world to that great principle of equality
equality measured by the rights of the citizens of the nation
granting it in all the empire of China; yet we are asked to
believe that John Hay denied, abjured, repudiated that
274
INTERNATIONAL SUBJECTS
policy of civilization in regard to the Panama Canal at the
very moment that, through the same agents, he was enforcing
the policy upon the same countries; and that he did it without
knowing it.
But, Mr. President, we are not left to inferences which
must be drawn from the circumstances that I have men-
tioned or from declarations of public policy or from the uni-
form course and custom of treaty-making regarding canals
and regarding public waters and transportation. There is
positive, and it appears to me conclusive, affirmative evi-
dence that the negotiators did effectively proceed in making
this treaty in accordance with the honorable obligation of
their country as the builder and maintainer of a public utility,
as the champion of equal commercial rights the world over.
We begin the consideration of the express provisions lead-
ing to the conclusion that the larger equality was intended
with the communication of the Hay-Pauncefote Treaty to
the Senate. Of course, we are all familiar with the terms of
the preamble preserving the general principle of article 8
of the Clayton-Bulwer Treaty. Let me read them again,
however, for convenience of reference:
The United States of America and His Majesty Edward the Seventh,
of the United Kingdom of Great Britain and Ireland, and of the British
dominions beyond the seas, King, and Emperor of India, being desirous
to facilitate the construction of a ship canal to connect the Atlantic and
Pacific Oceans, by whatever route may be considered expedient, and to
that end to remove any objection which may arise out of the convention
of April 19, 1850, commonly called the Clayton-Bulwer Treaty, to the
construction of such canal under the auspices of the Government of the
United States, without impairing the “ general principle” of neutraliza-
tion established in article 8 of that convention, have for that purpose
appointed as their plenipotentiaries.
Now we are told that the language of a treaty or of a con-
tract or of a statute cannot be changed by the preamble; but
what is the purpose of a preamble ? The purpose is to afford
a guide to the interpretation of the terms of the treaty or of
PANAMA CANAL TOLLS
275
the statute. When you start with the third article of the
Hay-Pauncefote Treaty and have a debate as to its interpre-
tation you turn to the preamble and you find there a guide
intended by the makers of the treaty to enable you to reach
the right interpretation upon the terms of the third article.
But, still further than that, the idea of not impairing the
general principle of neutralization is carried into the treaty
itself, for in article 4 -
It is agreed that no change of territorial sovereignty or of international
relations of the country or countries traversed by the_before-mentioned
canal shall affect the general principle of neutralization or the obligation
of the high contracting parties under the present treaty.
That is, repeating in the fourth article as being a part of the
treaty itself the words of the preamble that the obstacles
of the Clayton-Bulwer Treaty are to be removed without
impairing the general principle of neutralization established
in article 8 of that convention.
This preamble, sir, which refers to the general principle of
neutralization in the Clayton-Bulwer Treaty and which mani-
festly is designed to preserve in the Hay-Pauncefote Treaty
something of the Clayton-Bulwer Treaty, has been treated in
discussion as being a matter of not very much importance.
Not so the view of the negotiators of the treaty. Not so the
view of anybody connected with our Government at the time
the treaty was made, for you will perceive, in the first place,
that in the letters of transmittal of the treaty special pains
are taken to have it understood that this treaty preserves
unimpaired something which is called the general principle
of neutralization.
Mr. Hay, in transmitting the Hay-Pauncefote Treaty to
the President, writes:
I submit for your consideration . a convention ... to remove any
objection which may arise out of the ... Clayton-Bulwer Treaty
without impairing the “ general principle" of neutralization established
in article 8 of that convention.
276
INTERNATIONAL SUBJECTS
President Roosevelt, in transmitting the treaty to the
Senate, says:
I transmit, for the advice and consent of the Senate to its ratification,
a convention signed November 18, 1901, to remove any objection
which may arise out of the convention of April 19, 1850, . to the
construction of such canal under the auspices of the Government of the
United States without impairing the “ general principle” of neutralization
established in article 8 of that convention.
That feature of the Hay-Pauncefote Treaty is dwelt upon
and made extraordinarily prominent, and there is a mani-
fest feeling that the Senate ought not to lose sight of it in
considering whether it shall advise the ratification of the
treaty.
We are not left to that, however. When the treaty negotia-
tions were nearly completed, Mr. Hay wrote to Lord Paunce-
fote September 2, 1901, regarding the last treaty as com-
pared with the first Hay-Pauncefote Treaty, which failed of
ratification. He said:
I considered the adoption by the Senate without change of the pre-
amble of our former treaty
that is, the first Hay-Pauncefote Treaty
by which it was declared that the general principle of neutralization estab-
lished in article 8 of the Clayton-Bulwer convention was not impaired
thereby, a fortunate circumstance, as it enabled us in passing a new draft
to retain the important utterance in the preamble in the same form to
which the Senate had already given its assent.
Not only did Mr. Hay regard that as important, but the
British negotiators regarded it as highly important. On
September 25, 1901, Mr. Choate wrote to Mr. Hay as follows:
On Monday, the twenty-third, I had an interview with Lord Paunce-
fote and tried, as I had before, to persuade him that it was neither
wise nor necessary to mar your article 4 by the addition proposed in my
cable to you. But he thought, as he did before, and more strongly
than he did before, that with the addition Parliament and the British
press and public could be made to accept the treaty, but that without it
they could not.
PANAMA CANAL TOLLS
277
Referring to article 4 as it now appears in print -
He thought it very necessary that they should be able to say very em-
phatically that although they had abrogated the Clayton-Bulwer Treaty
they had preserved the principle of it.
What was that principle ? We have to turn to the Clay-
ton-Bulwer Treaty again. The principle of neutralization in
the eighth article of the Clayton-Bulwer Treaty is to be pre-
served unimpaired, according to the Hay-Pauncefote Treaty;
and it is regarded by the negotiators upon both sides as a
matter of great importance. Special attention is called to it
when the treaty is submitted to the Senate. Now, let me go
over again the provisions of the Clayton-Bulwer Treaty.
In the first article there is an agreement not to take advan-
tage of any alliance or any connection of either Government
on the Isthmus-
for the purpose of acquiring or holding, directly or indirectly, for the
citizens or subjects of the one any rights or advantages in regard to com-
merce or navigation through the said canal which shall not be offered on
the same terms to the citizens or subjects of the other.
No discriminations are to be made in favor of the commerce
of the one against the commerce of the other. The great
design of the convention is said to be, in article 6 -
That of constructing and maintaining the said canal as a ship com-
munication between the two oceans for the benefit of mankind, on equal
terms to all, and of protecting the same.
In the eighth article it is provided:
The Governments of the United States and Great Britain having not
only desired, in entering into this convention, to accomplish a particular
object, but also to establish a general principle, they hereby agree to
extend their protection, by treaty stipulations, to any other practicable
communications, whether by canal or railway, across the isthmus which
connects North and South America, and especially to the interoceanic
communications, should the same prove to be practicable, whether by
canal or railway, which are now proposed to be established by the way of
Tehuantepec or Panama. In granting, however, their joint protection to
any such canals or railways as are by this article specified, it is always
278
INTERNATIONAL SUBJECTS
understood by the United States and Great Britain that the parties con-
structing or owning the same shall impose no other charges or conditions
of traffic thereupon than the aforesaid Governments shall approve of as
just and equitable; and that the same canals or railways, being open to
the citizens and subjects of the United States and Great Britain on equal
terms, shall also be open on like terms to the citizens and subjects of every
other state which is willing to grant thereto such protection as the United
States and Great Britain engage to afford.
What is the principle of neutralization contained in that
article ? The negotiators understood that there was such a
principle in that article, for they say:
Without impairing the “ general principle of neutralization established
in article 8” of that convention.
1
The only two things in article 8 are the equality of service
and of charge between the vessels of the United States and
those of Great Britain and the extension of that to other
countries that come in and the obligation of protection. The
great object of the negotiation of the Hay-Pauncefote Treaty
was to take over to the United States alone the duty and
the right of protection. That was the difference between the
Hay-Pauncefote Treaty and the Clayton-Bulwer Treaty
that Great Britain was to surrender the right of protection,
to be relieved from the duty of protection and no other coun-
tries were to be permitted to come in and exercise the right of
protection. The United States was to put itself on the plat-
form that Blaine laid down in 1881, as the sole protector of
the canal. What, then, was there to be preserved unim-
paired in the eighth article of the Clayton-Bulwer Treaty ?
Nothing except the basis of equality; equality between the
United States and Great Britain, equality measured by the
treatment of the nationals of one country for the nationals of
the other. Nothing else was left to be preserved unimpaired.
Observe that the term used by the preamble and by the
fourth article of the Hay-Pauncefote Treaty, is not “neutral-
ity,” but “neutralization.” They are both well-understood
PANAMA CANAL TOLLS
279
and well-defined terms. By all writers upon international
law, in all the literature of international law, the distinction
is well understood. Neutralization is the contractual ar-
rangement which produces neutrality. The end to be at-
tained is neutrality. The means by which it is obtained is
neutralization.
Now, let us go back to the Clayton-Bulwer Treaty. The
only thing in the eighth article that was not expressly and
intentionally destroyed was the equality stipulated in the
eighth article, stipulated in the fifth article and the sixth
article and the first article, and carried into the eighth article
by reference. That equality was the principle upon which
this canal was to be made neutral. There is no other mean-
ing that you can find for it, and that is what was to be
preserved unimpaired:
There is no need of speculating about it. Fortunately, we
are told by the negotiators themselves what they meant. I
read from a letter of Mr. Choate to Mr. Hay, dated August
20, 1901, when this negotiation had far progressed and this
second treaty was in form, and there was nothing at all left
to be discussed which affected the subject. When I read
these words, I want you to remember that you must construe
the equality provision of the Hay-Pauncefote Treaty as
being the very equality established in the eighth article of
the Clayton-Bulwer Treaty, unless you can find some other
meaning in the minds of the makers of this treaty.
Now let me read what Mr. Choate said:
As article 8 stands in the C.-B. treaty -
the Clayton-Bulwer Treaty -
it undoubtedly contemplates further treaty stipulations - not "these"
treaty stipulations, in case any other interoceanic route, either by land
or by water, should“ prove to be practicable," and it proceeds to state
what the general principle to be applied is to be, viz.: no other charges
or conditions of traffic thereon “than are just and equitable," and that
280
INTERNATIONAL SUBJECTS
said canals or railways" being open to the subjects and citizens of
Great Britain and the United States on equal terms shall also be open
on like terms to the subjects and citizens of other states, which I believe
to be the real general principle of neutralization (if you choose to call it so)
intended to be asserted by this eighth article of the C.-B. Treaty.
That is from Mr. Choate to Mr. Hay. That is from the
man who put those words into the Hay-Pauncefote Treaty for
us to the man who authorized the signing of the Hay-Paunce-
fote Treaty for us, and that is what he meant. That is what
he said over his official signature he meant by preserving
unimpaired in the Hay-Pauncefote Treaty the general prin-
ciple of neutralization established in the eighth article of the
Clayton-Bulwer Treaty; and no power of reasoning or of
sophistry can justify the American Government in putting
upon the Hay-Pauncefote Treaty any other meaning than the
meaning there declared.
The negotiators on the other side thought the same thing
about it. Mr. Choate, on September twenty-first, reports to
Mr. Hay a conversation he had had with Lord Pauncefote.
He says:
He again insisted, as Lord Lansdowne had insisted, that they must
have something to satisfy Parliament and the British public that in giving
up the Clayton-Bulwer Treaty they had retained and reasserted the
“ general principle” of it, that the canal should be technically neutral
and should be free to all nations on terms of equality, and especially that
in the contingency supposed, of the territory on both sides of the canal
becoming ours, the canal, its neutrality, its being free and open to all
nations on equal terms should not be thereby affected.
There you perceive that Lord Pauncefote's paraphrase of
the terms of the eighth section of the Clayton-Bulwer Treaty
is
should be free to all nations on terms of equality.
It is the provision for equality in the Clayton-Bulwer
Treaty which he regarded as the general principle established
in the eighth article.
PANAMA CANAL TOLLS
281
Let me read it again:
They must have something to satisfy Parliament and the British public
that in giving up the Clayton-Bulwer Treaty they had retained and
reasserted the “ general principle” of it, that the canal should be techni-
cally neutral and should be free to all nations on terms of equality.
What that equality was, you find in the eighth article of the
Clayton-Bulwer Treaty.
Mr. Hay, in his letter to Senator Cullom at the time the
treaty was under consideration by the Senate, says:
He (the President) not only was willing but earnestly desired that the
general principle” of neutralization referred to in the preamble of this
treaty and in the eighth article of the Clayton-Bulwer Treaty should be
perpetually applied to this canal. This, in fact, had always been insisted
upon by the United States.
There was no change in policy.
He recognized the entire justice and propriety of the demand of Great
Britain that if she was asked to surrender the material interest secured
by the first article of that treaty, which might result at some indefinite
future time in a change of sovereignty in the territory traversed by the
canal, the “ general principle" of neutralization as applied to the canal
should be absolutely secured.
Whatever else the Hay-Pauncefote Treaty means, it means
to secure absolutely the general principle of neutralization
contained in the eighth article of the Clayton-Bulwer Treaty,
which was, according to the understanding of the makers of
the Hay-Pauncefote Treaty, the absolute equality of the
ships, the citizens and the subjects of all nations with the
ships and the citizens of the United States and of Great
Britain; and we are not at liberty to spell out any different
meaning of the Hay-Pauncefote Treaty.
In the face of these declarations we are asked to find a
meaning of this treaty which ascribes to Great Britain the
intent to abandon everything there was in the eighth article
of the Clayton-Bulwer Treaty. We are asked, in the face of
Mr. Choate's declarations to Mr. Hay, and Mr. Hay's to the
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INTERNATIONAL SUBJECTS
President and to the Senate, to ascribe to this treaty an in-
tention to take away from Great Britain everything there was
left of equality in the eighth article of the Clayton-Bulwer
Treaty; and we are asked to suppose that that was done
without its being mentioned in the negotiations, without
one word, without our asking it of Great Britain or Great
Britain's offering it to us, without its being discussed, without
its being proposed or broached in any way.
As the Senator from North Dakota [Mr. McCumber] sug-
gests to me, Great Britain could have surrendered much
more easily. All she need have done was to say: “We
consent to the abrogation of the Clayton-Bulwer Treaty.
That, however, is not the only thing. The third article of
the Hay-Pauncefote Treaty provides:
The United States adopts, as the basis of the neutralization of such
ship canal, the following rules, substantially as embodied in the conven-
tion of Constantinople, signed October 28, 1888, for the free navigation
of the Suez Canal; that is to say
Rules 1 to 6 are then enumerated:
1. The canal shall be free and open to the vessels of commerce and
of war of all nations observing these rules, on terms of entire equality, so
that there shall be no discrimination against any such nation, or its citi-
zens or subjects, in respect of the conditions or charges of traffic or other-
wise. Such conditions and charges of traffic shall be just and equitable.
That is declared by the treaty to be substantially as em-
bodied in the convention of Constantinople regarding the
Suez Canal. Turn to the convention of Constantinople, and
see what guide you find there to determine what was the
scope and character of the equality provided in this first rule,
which is said to be substantially as provided in the Treaty of
Constantinople.
The Treaty of Constantinople was made, not before title to
the canal was obtained, as in the case of our Hay-Pauncefote
Treaty, but after the title was obtained. The company that
PANAMA CANAL TOLLS
283
built the Suez Canal had already gotten their grant from the
territorial sovereign when this convention was made. Our
Hay-Pauncefote Treaty was made before the grant was
obtained from the territorial sovereign.
Mr. WILLIAMS. As a matter of information, was that after
Disraeli bought a majority of the stock in the Suez Canal ?
Mr. Root. I am not certain.
Mr. WILLIAMS. It was bought prior to that, was it not ?
Mr. Root. I am not positive.
Mr. WILLIAMS. The date of the treaty was 1888 ?
Mr. Root. October 28, 1888.
Mr. WILLIAMS. That was after Disraeli bought the stock.
Mr. Root. It must have been afterwards. This conven-
tion provides that Great Britain, Austria-Hungary, Spain,
and so forth
Wishing to establish by a conventional act a definite system destined
to guarantee at all times and for all the powers the free use of the Suez
Maritime Canal, and thus to complete the system under which the
navigation of this canal has been placed by the firman of His Imperial
Majesty, the Sultan, dated February 22, 1866 (2 Zilkadé, 1282), and
sanctioning the concessions of His Highness the Khedive, have named as
their plenipotentiaries; that is to say —
The firman of the Sultan sanctioning the concession of the
Khedive under date of February 22, 1866, referred to in this
paragraph, provides for a great variety of circumstances and
conditions relating to the construction and operation of the
canal, and in article 17 it provides:
The dues are to be levied without exception or favor upon all vessels
under like conditions.
So that was a fundamental basis under which the Suez
Canal was to be operated, and to which this convention was
to apply. The convention then proceeds:
The Suez Maritime Canal shall always be free and open, in time of
war as in time of peace, to every vessel of commerce or of war, without
distinction of flag.
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INTERNATIONAL SUBJECTS
Article 12:
The high contracting parties, by application of the principle of equality
as regards the free use of the canal, a principle which forms one of the
bases of the present treaty, agree that none of them shall endeavor to
obtain with respect to the canal territorial or commercial advantages or
privileges in any international arrangements which may be concluded.
Moreover, the rights of Turkey as the territorial power are reserved.
!
There, sir, you have the Suez Canal convention declaring
the principle of equality as one of the bases of its convention,
a convention made to regulate the operation of the canal
under a concession by the Khedive and a firman by the Sul-
tan, which prescribes that equal tolls shall be exacted of all
vessels under like conditions.
Mr. WILLIAMS. And after Great Britain had become the
owner.
Mr. Root. This convention which makes that declaration
of absolute and universal equality of tolls a basis of its agree-
ment was made, as the Senator from Mississippi suggests,
after Great Britain had become the chief owner and arbiter
of the canal. Now, I come back to the Hay-Pauncefote
Treaty. Article 3:
The United States adopts as the basis
they use the very term of the twelfth article of the Suez
convention, which makes equality one of the bases of its
convention. They use the very words of the twelfth article.
The United States adopts as the basis of the neutralization of such
ship canal the following rules, substantially as embodied in the conven-
tion of Constantinople, etc.:
1. The canal shall be free and open to the vessels of commerce and of
war of all nations observing these rules on terms of entire equality.
An“ entire equality” substantially as embodied in the
Suez convention. You are bound to say that the equality
was substantially the same. When these negotiators at that
very instant were appealing to the Suez convention, and
PANAMA CANAL TOLLS
285
declaring the treaty they were making was substantially
the same in the rule of equality which it prescribed, when
they were declaring that what they were doing was substan-
tially like what the Suez convention did - you are not at
liberty to say that at that very instant they meant something
entirely different. If you do that, you say they were dis-
honest, they were disingenuous, they were deceiving Great
Britain.
Ah, Mr. President, the worst thing about it is that our
Government has said from generation to generation it was
going to treat all the world alike in whatever it did about this
canal; that the makers of our treaty declared that they were
preserving unimpaired the equality established in the eighth
article of the Clayton-Bulwer Treaty; that the makers of our
treaty declared that the provision for equality was substan-
tially the same as that in the Suez treaty; that that was the
uniform, the unvarying attitude of the United States in every
step which we took to acquire title to the Canal Zone, and to
get the unrestricted right to own and operate the canal; and
not until after we got it, not until after we were secure, did
any American ever broach the idea that we were to use the
canal for selfish advantage commercially; that to the politi-
cal control, to the military control, to the power of ownership
and regulation and management, we were to add a discrimi-
nation against all the rest of the world for the purpose of
enabling our merchant ships to outdo them in competition.
Mr. WILLIAMS. Will the Senator pardon me for a sugges-
tion ?
Mr. Root. Certainly.
Mr. WILLIAMS. We not only waited until after we ac-
quired title but we waited until after we concluded that pos-
sibly the operation of the canal would be unprofitable, before
we made this claim.
Mr. Root. I am obliged to the Senator for his suggestion.
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INTERNATIONAL SUBJECTS
Now, what are the arguments for the narrower construc-
tion? It is said that in this first rule the words “ observing
these rules" limit the words “ all nations," so that they can-
not be held to include the United States. You cannot give
that construction to those words, if there is any construc-
tion that can be given to them consistent with the declarations
that I have been recounting here. Is it a necessary construc-
tion ? Certainly not. In the first place, when you look at the
history of the words “ observing these rules " you see that
they were put into the clause for an entirely different pur-
pose. They were not put there for the purpose of excluding
the United States. The reason why they were put there
appears in full, and with great distinctness and beyond any
doubt, in the correspondence and the record of the negotia-
tions.
The original Hay-Pauncefote Treaty contained a clause
providing that other nations should be invited to adhere, to
come in and become parties to the contract. Our negotiators
insisted, in negotiating the second treaty, that that should go
out. Indeed, the Senate had stricken it out in its amend-
ment of the first treaty. When Great Britain assented to
that she said that that done by itself, leaving the provision
that the canal should be free and open to the vessels of all
nations upon terms of entire equality, would operate against
her in time of war, because the rules from 2 to 5 in the third
article of the treaty, which described the conditions and re-
quirements of neutrality of the canal, would be binding upon
her, since she was a party to the treaty, and they would not
be binding upon any other country; and so other countries,
being entirely free from all the limitations of these neutrality
provisions, would have an advantage over her and she would
be subject to a burden. Accordingly she put into this first
clause “ all nations agreeing to observe these rules.” But
Mr. Choate and Mr. Hay said, “No, we will have no nations
PANAMA CANAL TOLLS
287
agreeing at all; that would let them into a contract relation
with the United States regarding the canal, and that we will
not have. Strike out 'agreeing and put it all nations
observing these rules,' because then any country which does
not wish to observe the neutrality provisions and rules 2 to 5
or 2 to 6, will be excluded from the use of the canal and Great
Britain will not be placed at a disadvantage in time of war."
That was the sole reason for putting in those words, and it
appears, I say, in full.
Now we are asked to give an entirely different meaning
and effect to the introduction of those words, a meaning and
effect which the negotiations show never entered the minds
of the negotiators upon either side.
It appears very clearly, by the enumeration of the changes
in the treaty when it was sent to the Senate, that the intro-
duction of the words “ observing these rules " was not under-
stood by the makers of the treaty as producing any change
whatever in the meaning of the first article except the limi-
tation that I have referred to; for Mr. Hay, in the memoran-
dum which came with the treaty, states the changes from the
first form of the Hay-Pauncefote Treaty, which did not con-
tain the words observing these rules," but was for all
nations, not limited to nations observing these rules. He
says they were as follows:
First. In the new draft of treaty the provision superseding the Clayton-
Bulwer Treaty as a whole.
Second. By a change in the first line of article 3, instead of the United
States and Great Britain jointly adopting as the basis of the neutralization
of the canal, the rules of neutrality prescribed for its use as was provided
by the former treaty, the United States now alone adopts them.
Third. The omission of the words“ in time of war as in time of
peace
from clause 1, of article 3.
Fourth. The striking out of the provision by which other powers were
to be invited to come in and adhere to the treaty.
Fifth. The change from the former treaty in the omission of the pro-
vision in clause 7 of article 3, which prohibited the fortification of the canal,
66
288
INTERNATIONAL SUBJECTS
and the transfer to clause 2 of the remaining provision of clause 7, that the
United States shall be at liberty to maintain such military police along the
canal as may be necessary to protect it against lawlessness and disorder.
Sixth. The omission of the words “in time of war as in time of peace,"
and dispensing with the necessity of the Davis amendment, giving express
authority to the United States to protect itself in time of war.
That is the enumeration of the changes that were made,
and you will find no place there for any change made by the
introduction of the words “ observing these rules.” It ap-
pears affirmatively otherwise that the negotiators did not
consider that they were making any change, for Mr. Choate
says in his final account of the second treaty, which I have
already read to you, for a different purpose
It gives us an American canal, on the sole condition of its being always
neutral and free for the passage of the ships of all nations on equal terms.
That is his statement of what this treaty meant. The clause
which provided that the treaty was to be for all nations ob-
serving these rules on terms of entire equality Mr. Choate
translates as being on the sole condition of its being always
neutral and free for the ships of all the nations on equal
terms; and Mr. Hay, in his account to the Senate of the terms
of this final treaty written to Mr. Cullom, says:
While omitting to invite other nations to adhere to the treaty when
ratified, and so to acquire contract rights in the canal, it was thought
that the provision that the canal should be free and open to all nations
on terms of entire equality would practically meet the objection.
He says, further, that Lord Pauncefote was requested" to
reach a conclusion which should be satisfactory to the United
States, if this could be done without departing from the great
principle of neutrality, including the use of the canal by all
nations on equal terms."
And he says it was believed that the declaration that it
should be free and open to all nations of the world on terms
of entire equality would practically meet the force of the
objection which had been made.
PANAMA CANAL TOLLS
289
I refer you again to the message of President Roosevelt,
transmitting this treaty to the Senate, in which he describes
it as a treaty which assures the right to the free passage of
the canal to all the nations of the world on equal terms.
Mr. SUTHERLAND. Does the Senator from New York
think that President Roosevelt intended by that language to
exclude the United States from the power to exempt its own
coastwise ships ?
Mr. Root. No; I do not think he had that in mind at all.
I think that he had in mind then the subject which I am now
discussing. It has nothing to do with the coastwise ships.
The subject which I am now discussing is the question what
was the rule of equality declared in the third article of the
Hay-Pauncefote Treaty. The question whether coastwise
vessels furnished an exception to that rule is an entirely
different question, which I shall come to presently.
am certain there is no other conclusion that can be
reached, and that President Roosevelt in that message in-
tended to declare that this treaty established the broad rule
of equality for all nations. He did not stumble over the
words “ observing these rules.” He said:
Under the Hay-Pauncefote Treaty it was explicitly provided that the
United States should control and protect the canal which was to be built,
keeping it open for the vessels of all nations on equal terms.
That is what he understood the treaty meant. But it is said
that the broad construction cannot be given, because the
United States is not to observe these rules. Nothing could be
further from the truth.
I turn again to the words of the Hay-Pauncefote Treaty.
Under article 3 there are six rules prescribed. The first is
that
The canal shall be free and open on terms of entire equality.
We are told that that is not a rule, because it does not
relate to neutrality, and that the second, third, fourth, fifth,
290
INTERNATIONAL SUBJECTS
and sixth paragraphs of article 3 are rules. Well, Mr. Presi-
dent, the treaty says it is a rule. I do not know that
any
of
us should assume to know better than the treaty-makers or
assume to know better than the treaty itself. The treaty
says:
The United States adopts as the basis of the neutralization of such ship
canal the following rules, substantially as embodied in the convention of
Constantinople.
That is to say:
1. The canal shall be free and open to the vessels of commerce and of
war of all nations observing these rules.
And I ask whether the United States was not to observe
this rule ?
Mr. SUTHERLAND. How would Great Britain observe that
first paragraph ?
Mr. Root. Perhaps she could not. The rules are to be
observed by the countries as they are applicable to those
countries. The code of rules may none of them ever have to
be observed by any country except the United States, be-
cause there may be no country ever under such circum-
stances as to call one of them into application; but it is quite
clear that the first paragraph under the preamble in article 3
is a rule, because the treaty says it is, and that the nation
which is primarily charged with the observance of that is the
United States, so that the United States must be considered
as coming within the description of nations observing these
rules. But let us pass to the others:
2. The canal shall never be blockaded, nor shall any right of war be
exercised nor any act of hostility be committed within it. The United
States, however, shall be at liberty to maintain such military police along
the canal. ...
They evidently thought the United States had something to
do with that rule or they would not have expressly provided
for what they apparently considered an exception to it.
PANAMA CANAL TOLLS
291
3. Vessels of war of a belligerent shall not revictual nor take any stores.
4. No belligerent shall embark or disembark troops.
5. The provisions of this article shall apply to waters adjacent to the
canal, within three marine miles of either end, but a vessel of war of one
belligerent shall not depart within twenty-four hours from the departure of
a vessel of war of the other belligerent.
Mr. President, all those rules of neutrality, the product of
the direct application of the principle of neutralization pre-
served from the eighth article of the Clayton-Bulwer Treaty,
are primarily for the observance of the United States. We
are not dealing with an unknown subject here; we are dealing
with a subject which has enlisted the attention of publicists
and rulers and diplomatists since international law began.
We undertook in the Treaty of Washington to formulate
certain rules, and we did formulate certain rules of neutrality,
to the observance of which Great Britain and the United
States pledged themselves, and for the non-observance of
those rules in the past, through the Geneva arbitration, we
compelled Great Britain to pay us $15,000,000.
There are two kinds of neutrality — the result of neutral-
ization by a general convention, in which a great number of
countries declare certain territory to be neutral and all accept
the burden of maintaining the neutrality and observing it;
that is one. The other is the neutrality which a territorial
sovereign declares in respect of its territory. The leader of
the world in neutrality of that description is the United
States. It commenced its wise and beneficent treatment of
the subject by Washington's neutrality proclamation. When
any country declares the neutrality of its territory, as be-
tween any two or more belligerents, that country assumes
the duty of observing the rules which the law of nations has
established for the regulation of neutrality. A part of those
rules were codified in the Treaty of Washington in 1871. In
that treaty Great Britain and the United States in express
terms declare that the high contracting parties agree to
292
INTERNATIONAL SUBJECTS
observe those rules, that were codified in that treaty. The
most enlightened and advanced rules regulating the neu-
trality of a country under the powers of a single sovereignty
were codified here in this Hay-Pauncefote Treaty, and im-
posed upon the United States, because the change from the
first Hay-Pauncefote Treaty to the second treaty changed the
character of the neutrality from a neutrality by universal
agreement, to a neutrality by the fiat of the sovereign of the
territory, the controller of the territory. Those rules have
been codified again in the neutrality treaty of the second
Hague Conference of 1907; and in that codification there are
express provisions, declaring in detail the obligations of the
sovereign guaranteeing the neutrality. There is not a rule
here, from the second to the fifth, that does not impose duties
upon the United States. Where the rule says the canal shall
not be blockaded, the duty of observance rests upon Great
Britain as a contracting party; it rests upon all other coun-
tries that use the canal, because they avail themselves of the
privilege; it rests upon the United States, because she has
contracted that the canal shall be open; and it will be her
duty to stop a blockade if she has the physical power, and if
she has not, it will be her duty to exact reparation from any
party who violates the rule by blockading the canal.
If ships of war, in time of war, shall loiter in the canal, it is
her duty to urge them forward. If a ship stays to the limit of
twenty-four hours, it is her duty to give notice and to require
it to leave. If a ship undertakes to disembark or to embark
men and munitions in time of war, it is the duty of the United
States to prevent it. We have time and again in our diplo-
matic history acknowledged the duty of observance both by
the power that guarantees the neutrality of the territory and
the duty of the powers that avail themselves of the privilege
of using the neutralized territory. We have made amends for
violating the territory of a neutral; we have exacted amends
PANAMA CANAL TOLLS
293
of others that have violated our neutral territory; and every
rule which is contained in the second article of the Hay-
Pauncefote Treaty in regard to neutrality is a rule the
observance of which is incumbent upon the United States.
We are told that the United States cannot be supposed to
have been laying down rules for herself as a customer; that
this article of the Hay-Pauncefote Treaty prescribes rules for
the customers of the canal, and that we cannot suppose that
the United States expected to be its own customer. Well,
that involves confusion of ideas between the vessels of citi-
zens of the United States and vessels of the United States
itself, to which I have already adverted. The customers of
the canal are not nations in their political capacity. If this
canal had been built by a company, as was within the con-
templation of the treaty and the words of the treaty, the
United States politically would not have been a customer of
the canal; but the ships of the citizens of the United States
and the owners of those ships would have been customers, the
ships of the United States would have been customers, and
the ships of all other countries would have been customers.
American citizens owning American registered and enrolled
ships will be customers of the canal just as much as will be the
subjects of other countries.
We are also told that all presumptions are against grants
in derogation of sovereignty. There are two things to be said
about that: in the first place, when we made this treaty we
had no sovereignty. We made no grant in derogation of
sovereignty; we made no grant affecting any sovereignty
that we had. The observance of this provision is a reserva-
tion in favor of the sovereignty of Panama in her grant to us,
and the observance of that reservation is one of the stipu-
lations under which we acquired the right to build the canal.
Another thing to be said about that argument is, that no
stipulation about the amount of tolls can be in derogation of
294
INTERNATIONAL SUBJECTS
sovereignty under any circumstances. Fixing tolls is a busi-
ness transaction. When the United States goes into business
as the owner of a railroad or of a canal, the fixing of a charge
is not an act of sovereignty; it is an act of business.
Did we derogate from sovereignty when we made our
treaty in 1854, our treaty in 1871, and our still more recent
treaty of 1909, in which we agreed that the tolls charged upon
Canadian or British vessels in all our canals along the bound-
ary should be measured by the tolls charged to American
citizens? Have we lost our sovereignty over the Sault
Canal ? Do we derogate our sovereignty when we agree
that we shall charge the same rates in our ports to citizens of
other countries that we charge to citizens of our own country?
Have we thereby lost our sovereignty over the port of New
York or of Boston or of Philadelphia or of Buffalo ?
The argument is made that this treaty is no longer binding
because there has been a change of sovereignty. There has
been much argument made upon the express provision of
this treaty, the fourth article, under which it was expressly
provided that no change of sovereignty should affect the
rights and duties of the parties to the treaty; but the corre-
spondence shows that that fourth article of the treaty was
put in for the express purpose of preventing any such argu-
ment as has been made here from prevailing. Here is Mr.
Choate writing to Mr. Hay about this fourth article. That
was proposed by Great Britain. Form was given to it by
Mr. Hay. Let me read it again:
It is agreed that no change of territorial sovereignty or of international
relations of the country or countries traversed by the beforementioned
canal shall affect the general principle of neutralization or the obligation
of the high contracting parties under the present treaty.
Mr. Choate writes:
The idea “ change of sovereignty," of course, relates to the report of
an intention on the part of the United States to acquire a strip of terri-
PANAMA CANAL TOLLS
295
tory on each side of the canal, and “other change of circumstances is
aimed at the argument in some future epoch against the continuance of
this treaty that has often been directed against the continued binding
force of the C.-B. Treaty that “change of circumstance” since 1850 has
put an end to it.
And Mr. Hay's letter to Senator Cullom, referring to the
Lansdowne treatment of the negotiation, says:
In this connection he referred to the fact that the new treaty contained
no stipulation against the acquisition of sovereignty over the territory
through which the canal should pass.
It was claimed that if Great Britain were now to be called upon to
surrender the interests and the principle thus secured by what remained
of the Clayton-Bulwer Treaty, there should be, in view of the character
of the treaty now to be concluded and of the “ general principle” of neu-
tralization thus reaffirmed in the preamble, some clause inserted agreeing
that no change of sovereignty or other change of circumstances in the
territory through which the canal is intended to pass shall affect such
"general principle” or release the parties, or either of them, from their
obligations under this treaty.
Mr. COLT. May I ask the Senator a question for instruc-
tion merely ? Were any rights of sovereignty reserved to the
United States under the Hay-Pauncefote Treaty such as were
reserved to Turkey under the Suez convention ?
Mr. Root. I think I would answer that question in the
negative. At the time the Hay-Pauncefote Treaty was made,
neither party had sovereignty, and there could be no reserva-
tion of any rights of sovereignty. The convention mani-
festly contemplated that the United States should, either for
itself or for a company to be patronized by it, acquire certain
rights for the construction of a canal on the Isthmus, either
by the way of Nicaragua or of Panama. All questions of
sovereignty would necessarily have to be dealt with in the
instrument which conferred those rights. In the treaty with
Nicaragua, to which I have already referred, the United
States acquired rights very far short of sovereignty; in the
Hay-Herran Treaty, which was negotiated with Colombia
296
INTERNATIONAL SUBJECTS
immediately after the Hay-Pauncefote Treaty, and which
Colombia refused to ratify, the United States received rights
very far short of sovereignty. But in the Panama treaty, for
the first time, there was a grant to the United States of what
amounted to substantial sovereignty over the Canal Zone,
Panama making, however, certain reservations and im-
posing certain stipulations, among them a stipulation that
the canal should always be free and open to ships of all
nations upon the terms of the third article and all the terms
of the Hay-Pauncefote Treaty.
Mr. Colt. I do not desire to interrupt the Senator. I
simply want to suggest that, as it lay in my mind, the pro-
vision as to change of sovereignty being inserted in the second
Hay-Pauncefote Treaty and our negotiators failing in the
conclusion of that treaty to reserve to the United States the
same rights of sovereignty of the territorial sovereign which
were reserved to Turkey, the territorial sovereign of the Suez
Canal, under, I think, the tenth and thirteenth articles of the
Suez convention, whether it was not an omission on their
part not to reserve to the United States the same sovereign
rights reserved in the Suez convention?
Mr. Root. Mr. President, it may be that it would have
been advisable to put into the Hay-Pauncefote Treaty some
clause of that kind; but manifestly the controlling provision
must be the provision of the treaty with Panama, because
only the sovereign can effectively reserve such rights.
Mr. President, when we are talking about the infringe-
ment of sovereignty, and especially when we hear heated
denunciations of what is called the surrender of American
sovereignty, assertions that we have built the canal on our
own territory, with our own money, and can do what we
please with it, I cannot forget that four years ago at this
time I was representing our country before a great tribunal
at The Hague, urging upon that court the rights of the
PANAMA CANAL TOLLS
297
1
:
United States to have observed in good faith by Great Britain
the stipulations which she had made in the treaty of 1818,
regarding the treatment of our fishermen upon the coasts and
in the bays and harbors of Newfoundland. I was urging
then that under the treaty of 1818, which provided that
American fishermen should have in common with the sub-
jects of His Britannic Majesty the liberty to take fish upon
that coast, Great Britain was bound to treat our fishermen
in letter and in spirit by the rule of equality and of justice,
although it was in her waters, in the unquestioned territory
of her oldest colony, that we were claiming to exercise our
rights. The result of that arbitration was that, pursuant to
the provisions of the award and the agreement between the
countries adjusting and giving effect to it, if any law be
passed now which the fishermen of the United States regard
as unjust and unequal toward them in the exercise of their
calling in those British waters, upon the objection of the
United States it is suspended in operation and submitted
to the arbitration of an impartial international tribunal, to
determine whether it shall take effect. Ah, Mr. President, ,
conformity to the obligations of treaties is the highest exercise
of sovereignty and not the infringement of sovereignty.
It seems to me, sir, that I have now reached a point where
I am justified in leaving the main question, which I have dis-
cussed with a feeling that I have, in a poor and halting way,
but by the presentation of substantial matter, established the
general rule prescribed in the third article of the Hay-Paunce-
fote Treaty as a rule of real entire equality, of real absence of
discrimination, applicable to all the nations of the world, to
all ships, to all subjects, and to all citizens.
The question to which we now must pass, is the question
whether the statute whose repeal is sought is in conformity
with that rule of equality.
298
INTERNATIONAL SUBJECTS
1
It is said that coastwise traffic may be exempted from that
rule, and that is claimed on the authority of the case of Olsen
against Smith in One hundred and ninety-fifth Supreme
Court Reports. In that case the court say:
Nor is there merit in the contention that as the vessel in question was
a British vessel coming from a foreign port, the State laws concerning
pilotage are in conflict with the treaty between Great Britain and the
United States, providing that "no higher or other duties or charges shall
be imposed in any ports of the United States on British vessels than those
payable in the same ports by vessels of the United States.” Neither the
exemption of coastwise steam vessels from pilotage resulting from the law
of the United States nor any lawful exemption of coastwise vessels created
by the State law concerns vessels in the foreign trade, and therefore any
such exemptions do not operate to produce a discrimination against
British vessels engaged in foreign trade and in favor of vessels of the
United States in such trade. In substance, the proposition but asserts
that because by the law of the United States steam vessels in the coast-
wise trade have been exempt from pilotage regulations, therefore, there is
no power to subject vessels in foreign trade to pilotage regulations, even
although such regulations apply, without discrimination, to all vessels
engaged in such foreign trade, whether domestic or foreign.
It will be perceived that that utterance of the Supreme
Court lays down the rule of equality as to trade of the same
kind. Now, sir, I do not doubt that coastwise trade, real
coastwise trade, is a special kind of trade, standing by itself,
quite unlike the great over-seas trade. All countries, as a
rule, treat their coastwise trade with special favor; they
charge reduced rates for the privileges it has in their ports;
and if any such real coastwise trade, any of the trade that has
been known to the laws and treaties and navigators and
traders time out of mind as coastwise trade, or cabotage, were
to pass through the Panama Canal, I should not question
the right to treat that in a different way from the great over-
seas trade that goes through that canal. But, Mr. President,
the real gist of this discrimination is not the discrimina-
tion between coastwise trade, properly so called, and other
trade. No real coastwise trade will go through that canal.
PANAMA CANAL TOLLS
299
It is a thousand miles and more away from our coast. The
trade that goes through it will be real over-seas trade, carried
on by great ships, making long voyages - in its nature the
exact antithesis to real coastwise trade.
The trouble with this discrimination is the kind of trade
which is included in this statute. The great over-seas trade,
the trade from New York to San Francisco; from Portland,
Maine, to Seattle; from Philadelphia to Hawaii; from Balti-
more to Alaska, in great ships plowing two oceans, great over-
seas trade, although beginning and ending in American ports,
is included by our statute under the term “coastwise" and
has the benefit of this discrimination; and other countries
have the same kind of trade and will send the same kind of
trade through the Suez Canal. The decision of the Supreme
Court of the United States was based upon the absence of
discrimination between the same kind of trade. Here this
.
discrimination is solely between the same kind of trade. It is
a discrimination between a kind of trade carried on in Ameri-
can ships and the same kind of trade carried on in other ships.
Great Britain - Canada - will have the same kind of
trade between Halifax and Vancouver. Mexico will have the
same kind of trade between Tampico, sometimes Vera Cruz,
and Acapulco. Honduras, Nicaragua, Costa Rica, Colom-
bia; Germany between her ports and the Caroline Islands
will have just the same kind of trade that we have between
our Atlantic ports and Hawaii; England from London to
Hong-Kong; Russia from her Baltic ports to her Siberian
ports. There is no basis of this discrimination in the kind of
trade. The basis of the discrimination is nothing but the
flag; and I cannot resist the conclusion, sir, that such
discrimination is not in conformity with the rule of equality.
But we are told, sir, that we must not repeal this statute
at the behest of Great Britain." The behest of Great
Britain!
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INTERNATIONAL SUBJECTS
What has Great Britain said to us ? Let us see. She has
said that she considered this statute to be a violation of
the contract; and she said, in Mr. Mitchell Innes's note
of August 27:
I am instructed to add at the same time that should there eventually
be a difference between the two countries as to the correct interpretation
of the Hay-Pauncefote, Treaty which cannot be settled by other means,
His Majesty's Government would then ask that it should be referred to
arbitration in accordance with the provisions of the existing arbitration
treaty concluded in 1908.
The same thing was said to Mr. Phillips, who was our
chargé in London; and he reports that Sir Edward Grey
announced in Parliament that -
Should there eventually be a difference between the two countries
respecting the interpretation of the Hay-Pauncefote Treaty that could not
be settled by other means, His Majesty's Government would ask that it
be referred to arbitration in accordance with the provisions of the existing
arbitration treaty concluded with the United States in 1908.
In the formal note of Sir Edward Grey to our State
Department, he concludes:
His Majesty's Government feel no doubt as to the correctness of their
interpretation of the treaties of 1850 and 1901 and as to the validity of
the rights they claim under them for British shipping; nor does there
seem to them to be any room for doubt that the provisions of the Panama
Canal Act as to tolls conflict with the rights secured to their shipping by
the treaty. But they recognize that many persons of note in the United
States, whose opinions are entitled to great weight, hold that the provisions
of the act do not infringe the conventional obligations by which the
United States is bound, and under these circumstances they desire to
state their perfect readiness to submit the question to arbitration if the
Government of the United States would prefer to take this course.
Does that sound like a behest ? Is there anything arrogant
or insolent about that?
Let me recall to your minds, without going over the long
history, what the United States has said and done in respect
of arbitration. Let me recall to your minds the resolutions
passed by the Senate and by the House calling for the nego-
PANAMA CANAL TOLLS
301
是 ​.
tiation of treaties of arbitration; the messages of Presidents,
in long succession, declaring to Congress the unalterable
devotion of the Government of the United States to the prin-
ciples of arbitration; the multitude of treaties negotiated at
the instance and by the request and urgency of the United
States pursuant to these resolutions of Congress, and
providing for arbitration.
Are we to regard it as arrogant and insolent that a nation
with which we have made a treaty regarding the price of a
service to be rendered differs from our interpretation of the
treaty and proposes arbitration ?
Let me recall to you also the Alabama Claims, and the time
when we called for arbitration to enforce our demands against
Great Britain, and got it, and got judgment for $15,000,000.
Let me recall when we called for arbitration of our northwest-
ern boundary, and obtained for ourselves the disputed sover-
eignty to the island of San Juan, in the Strait of Fuca. Let
me recall the time when we wanted arbitration for the rights
of our helpless fishermen upon the Newfourdland and the
Canadian coasts, and got it, and got protection for them. Let
me recall the time when the miners of two countries were
standing on either side of the disputed boundary line in
Alaska, and in the interest of peace and civilization the two
countries arbitrated the Alaska boundary, and we got the
territory we claimed. Let me recall to you the Venezuela
boundary controversy, when we demanded that Great Bri-
tain arbitrate. Let me read to you the language of Secretary
Olney to England:
OLNEY TO BAYARD
JULY 20, 1895.
You are instructed, therefore, to present the foregoing views to Lord
Salisbury by reading to him this communication (leaving with him a
copy, should he so desire), and to reënforce them by such pertinent con-
siderations as will doubtless occur to you. They call for a definite decision
upon the point whether Great Britain will consent or will decline to submit
the Venezuelan boundary question in its entirety to impartial arbitration.
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INTERNATIONAL SUBJECTS
Those are peremptory words, evincing no doubt of the moral
right to demand arbitration.
It is the earnest hope of the President that the conclusion will be on
the side of arbitration, and that Great Britain will add one more to the
conspicuous precedents she has already furnished in favor of that wise
and just mode of adjusting international disputes. If he is to be dis-
appointed in that hope, however,- a result not to be anticipated and, in
his judgment, calculated to greatly embarrass the future relations between
this country and Great Britain — it is his wish to be made acquainted
with the fact at such early date as will enable him to lay the whole sub-
ject before Congress in his next annual message.
He laid it before Congress. You all remember that it was a
war message. All the world understood it. He got his
arbitration.
Oh, arbitration when we want it, yes; but when another
country wants it, “Never, never furl the American flag at
the behest of a foreign nation.
Mr. President, the subject that I am now discussing raises
sharply the question how the American people want their
affairs to be conducted. They have a multitude of relations
with other countries. They are doing a business of over four
thousand million dollars with other countries. They are
travelling all over the world in hundreds of thousands. They
are receiving in this country hundreds of thousands of the
citizens of other countries. Vast interests of property and of
liberty and of life are regulated by the great body of treaties
and conventions that we have with other countries. We
think ourselves, and rightly think ourselves, leaders in civili-
zation. We are for the amelioration of manners and of con-
duct which tends to substitute kindly feelings and considerate
treatment for the rule of hatred, of strife, and of war.
Do the American people wish their representatives to treat
all the other nations that are in conventional relations with
us, that are brought in contact with us by travel, by trade,
by all the multitudinous intercourse of modern life, upon the
!
PANAMA CANAL TOLLS
303
theory that any question of right by them is an insult, that
any according of a right to them by us is a surrender ? Do
they want us to conduct our foreign affairs on the principle
of the thoughtless youth who flings up his hat and shouts for
the flag, or as just and considerate men transact their own
business with each other, as neighbors in a town treat each
other, as business men treat their customers and the persons
from whom they buy? Do they want us to be ugly and
revengeful and insolent and brutal and boasting, or do they
want us to be dignified and calm and considerate and
reasonable in our relations with foreign countries ?
I say that the argument that we are called upon to sur-
render at the behest of Great Britain” raises the question
which I have just described, and which I will not stop to
answer, for there can be but one answer and that finds itself
in the immediate response of every Senator.
But, Mr. President, why are we here discussing repeal ?
Great Britain asked for arbitration. Why are we here
discussing repeal ?
Mr. President, Mr. Taft, who was President of the United
States when this controversy arose, was in favor of arbitra-
tion. He declared for arbitration in a public speech made
early in January, 1913. I have not that speech here, but I
know that it was before I spoke in the Senate on January 21,
1913, on this subject. Mr. Taft substantially repeated what
he then said in a speech at Ottawa on January thirty-first of
this year, in which he said:
Now, we shall doubtless have to arbitrate the matter, unless Congress
reverses itself. There are some hot-heads that talk in absurd tones about
the right of the United States to manage her own canal and her own
property as she likes, no matter what she has agreed to; but that is all
froth. Those are the "explosivistas.”
i
President Roosevelt, with all his courageous and comba-
tive nature, is in favor of arbitration. President Wilson is
304
INTERNATIONAL SUBJECTS
It
devoted to arbitration. Senator Lodge is in favor of arbitra-
tion. Senator Sutherland is in favor of arbitration. I refer
to them because they have announced it upon the floor in
this debate. Why am I discussing the subject here ? I am in
favor of arbitration.
Will you pardon me if I go back to the first thing that I
ever said on this subject ? When the Panama Canal bill was
up in this body on July 15, 1912, I said:
appears quite certain to me, sir, that if we enact the provision which
is now before us, making the discrimination against which Great Britain
protests, as the other party to this international agreement, the question
raised will be one for arbitration under our existing treaty with Great
Britain. It will present the simplest, most unquestionable case for the
submission to an impartial tribunal of the contending claims of the two
parties to the contract. We could not refuse to arbitrate the question.
Great Britain could not refuse to arbitrate it. It is the kind of question
which our treaty of arbitration expressly requires to be arbitrated, and it
is a question which ought to be arbitrated.
Instead of arguing the question, I shall content myself with suggesting
to the Senate that any legislation which may be enacted ought to be
framed with a view to the fact that this is a matter about which we can-
not finally decide. If the judgment of the Senate shall be in favor of the
policy of discrimination — and mine is not; I think it is wholly unjustifi-
able and unnecessary
nevertheless we should exercise our power of
legislation with a view to the fact that the question of our right to legis-
late in such a way as to discriminate is one which may be decided against
us by the international tribunal to which we are bound to submit it.
After President Taft had made his public speech in favor of
arbitration, I made a speech in the Senate on June 21, 1913,
in favor of arbitration. It was an arbitration speech, but I
already knew that the obstacles to arbitration which were
arising might be insurmountable, and I put the alterna-
tive that we must arbitrate or we must withdraw from the
position that we refused to arbitrate.
Now, let me answer the question why we are here. I will
answer by reading part of the debate in the Congressional
Record of April ninth. The Senator from Iowa [Mr. Ken-
PANAMA CANAL TOLLS
305
1
1
yon) had just put into the Record the letter of President
Roosevelt saying that he considered that the coastwise
exemption was permissible under the treaty, but that it was
a subject that ought to be arbitrated. He had wound up his
letter by this:
But when we have deliberately and solemnly made a promise, then I
most emphatically believe that this nation should keep that promise
just as an honorable man would do as regards a private promise of the
same type. Therefore I believe it to be the bounden duty of this nation
to arbitrate the question of the canal tolls under the provisions of our
arbitration treaty.
The Senator from Mississippi [Mr. Williams) said:
Mr. President, I agree with the utterances of ex-President Roosevelt
to the effect that this is a question which might be very well and ought
to be submitted to arbitration; but I wish to ask the question now, Do
the followers of ex-President Roosevelt upon this floor believe it ?
If it had been thought that this question could be submitted to arbitra-
tion, that the Senate would submit it to arbitration, the question never
would have been here in its present form. When we were discussing this
matter when the Panama Canal Act was passed, the senior Senator from
Iowa (Mr. Cummins), the colleague of the Senator who has just had this
article read, in his place upon the floor of the Senate said that this was
not an arbitrable question. He differed from the ex-President. He
thought it was a matter that affected the independence and the vital
interests and the honor of the United States. We found, or thought we
found, that a good many more than a third of the Senate entertained that
idea, and they were not willing to submit the question to arbitration.
I am not one of those who say that the exemption of coastwise shipping
from the payment of tolls was a violation of the treaty with Great Britain;
but I am one of those who say that the position which the Senate or its
members have undoubtedly taken, that they will not submit this ques-
tion to arbitration, is a violation of another treaty which we have made
with about eight or nine powers; a treaty which says that all questions of
the interpretation of treaties shall be submitted to arbitration.
Mr. GALLINGER. Mr. President
The VICE-PRESIDENT. Does the Senator from Mississippi yield to the
Senator from New Hampshire ?
Mr. WILLIAMS. I yield.
Mr. GALLINGER. I have been a pretty constant attendant upon the
sessions of the Senate for a long time, and I do not recall that this question
ever was presented to the Senate.
-
306
INTERNATIONAL SUBJECTS
Mr. WILLIAMS. Oh, I did not say it was. There are more ways of
finding out what Senators think than by presenting a question to the
Senate. Will the Senator say that he believes two thirds of the Senate
would submit this question to arbitration, or will he, on the contrary,
frankly tell me that he does not believe it ?
Mr. GALLINGER. I am always frank when I am dealing with the
Senator from Mississippi. He knows that I will say that I do not
think two thirds of the Senate would.
Mr. WILLIAMS. No; I know they would not.
There we are. That is why we are here - all of us who are
in favor of arbitration, we who from the beginning declared
that this question ought to be determined by an impartial
court of arbitration, we who have argued for it. We are here
now supporting this repeal bill because, in the judgment of
the old and wise and experienced Senators best qualified to
judge, it was impossible and is impossible to get a vote of
two thirds of the Senate to send the question to arbitration.
There were other evidences, but I will not detain you to
give them. I could read from the records of the Committee
on Interoceanic Canals matter to sustain the same conclu-
sion. A majority of thirty-two of the members of the Senate
would be necessary to send this case to arbitration. We are
for this repeal first and chiefly because we cannot arbitrate it,
and to refuse to arbitrate it would be discredit and dishonor
for our country.
Right or wrong, whatever rules or whatever exceptions
may justify it, if we decide this in our favor and refuse to
arbitrate we are discredited, we are dishonored, we have
repudiated our principles.
Now, let any man who votes against this repeal take to
himself the responsibility of leading his country into that
position. I for one shall not. If every constituent I have
were looking with hope for lower freight rates, I would not.
If my convictions were so blinded that I saw only the lurid
light of red flame when a railroad is mentioned, I would not
PANAMA CANAL TOLLS
307
lead my country into such a position. If I had away back in
my childhood learned a tradition of hatred against any other
country, I would not lead my own country into such a posi-
tion as that. I will vote for this repeal because it is the surest
and, I believe, the only way to save our country from that
most discreditable result.
Mr. President, there is one argument which I have omitted
to notice against this repeal. It is the argument that Great
Britain alone has protested; that no other country has pro-
tested or remonstrated. That is true, so far as I know; but
let me call your attention to something that happened in the
course of the negotiations. You remember that the Clayton-
Bulwer Treaty provided for all other countries coming in and
agreeing to share in protection. You remember that the
first Hay-Pauncefote Treaty provided that all other countries
should be asked to adhere; that is to say, to become parties
to the treaty. The Senate struck it out, and in the negotia-
tion of the second Hay-Pauncefote Treaty it was omitted.
You remember that Lord Lansdowne wished to have in-
serted in the treaty a provision limiting the benefits of free-
dom and equality of the canal to those nations which should
agree to observe these rules, and Mr. Hay objected to having
the agreement. Here is what Mr. Choate said about it, in
giving an account of an interview with Lord Lansdowne:
Secondly. I told him that I thought his amendment of the first clause
of the third article, insisting upon bringing in other nations as parties
to the agreement after the Senate had struck out of the Hay-Pauncefote
Treaty the article inviting them to come in, would seem counter to the
very strong conviction in the Senate, sustained, as I believe, by an equally
strong and general popular conviction, that we ought not to accord to
other nations any contract rights whatever in the canal which we were to
build and own; that none of them, though invited, ever came in or
offered to come in under the Clayton-Bulwer Treaty; that at present they
had no rights; that they must be content to rely on our national honor to
keep the canal open to them, as declared in this treaty with Great Britain.
308
INTERNATIONAL SUBJECTS
Mr. Hay reports to the Senate:
This was represented to His Majesty's Government, and it was also
insisted on the part of the United States that there was a strong national
feeling among the peoples of the United States against giving to foreign
powers a contract right to intervene.
That they must rely upon the good faith of the United States in its
declaration to Great Britain in the treaty that it adopts the rules and
principles of neutralization therein set forth, and that it was not quite
correct to speak of the nations other than the United States as being
bound by the rules of neutralization set forth in the treaty.
No contract rights are given to these other powers. Our
Senate will not permit it; our people will not permit it.
France, Germany, Austria-Hungary, Italy, Russia, and all
the rest are to have no contract right, but they are to rely on
the honor of the United States. They are to have only the
good faith of the United States that we will observe the
declarations of the treaty. They have made no representa-
tion or protest. Oh, no; they cannot. They have no contract
rights. They have nothing but our honor; nothing but the
good faith of America.
Mr. WILLIAMS. Which can be carried out by no one except
ourselves.
Mr. Root. Yes. Mr. President, who is the guardian of a
nation's honor but her own sons? Do we commit its keep-
ing to England ? Oh, no; not to England nor to any other
power on earth do we commit the duty of remonstrance
against our breach of honor. Our conscience must be our
monitor. America must make the demand upon America
that her honor and her good faith be kept without stain.
It is no petty question with England about tolls. This is
a question whether the United States, put on its honor with
the world, is going to make good the public declarations that
reach back beyond our lives, whether the honor and good
faith of the United States is as good as its bond, whether
acute and subtle reasoning is to be applied to the terms of a
PANAMA CANAL TOLLS
309
treaty with England to destroy the just expectations of the
world upon more than half a century of American professions,
upon which we give no contract right, and there is no security
but honor and good faith.
Sir, in the weak and inadequate arguments and appeals
that I have made upon this subject I speak not for England.
I do not present England's case. I do not care about her
case. But I knew something about this treaty. I knew what
John Hay thought. I sat next him in the Cabinet of Presi-
dent McKinley while it was negotiated, and of President
Roosevelt when it was signed. I was called in with Senator
Spooner to help in the framing of the Panama Treaty which
makes obedience to this Hay-Pauncefote Treaty a part of the
stipulations under which we get our title. I negotiated the
treaty with Colombia for the settlement and the removal of
the cloud upon the title to the Isthmus of Panama, and car-
ried on the negotiations with England under which she gave
her assent to the privileges that were given to Colombia in
that treaty. I have had to have a full conception of what
this treaty meant for now nearly thirteen years. I know
what Mr. Hay felt and what he thought, and, Mr. President,
I speak for all the forebears that went before me in America,
and for the generations that shall come after me, for the
honor and credit of our country, and for that alone. If we
do not guard it, who shall ?
A settlement ? We are told that the speech I made in
January, 1913, prevented a settlement. If I could believe
that, I would tell it to my children, that they might rejoice
after I am gone at that one service rendered to their country
Settle ? Compromise ? Compromise the honorable obliga-
tions of our country? Never. If Great Britain should be so
false to the duty she assumed in imposing upon us stipula-
tions as a condition of our having the right to build the canal,
if she should be so false to the duty toward mankind which
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INTERNATIONAL SUBJECTS
she assumed then, as to commute the obligations that we
took upon us for any advantage to herself, I would not con-
sent to give one copper farthing to have her withdraw her
demand.
We are right or we are wrong. If the rule of equality which
we have prescribed for all the world is infringed by this
statute, no negotiations with Great Britain can relieve us of
our obligations to arbitrate or withdraw the statute, our obli-
gations to the rest of the world to arbitrate or withdraw the
statute, our obligations to ourselves, to our own consciences,
our own sense of right and honor.
There is even more than the higher interests of an ordinary
nation involved in this question.
It is now some eighty years since De Tocqueville, in his
great book, Democracy in America, which presented to the
world so just and favoring an estimate of our country, wrote
these words:
It is therefore very difficult to ascertain at present what degree of
sagacity the American democracy will display in the conduct of the foreign
policy of the country, and upon this point its adversaries, as well as its
advocates, must suspend their judgment. As for myself, I have no hesi-
tation in avowing my conviction that it is most especially in the conduct
of foreign relations that democratic governments appear to me to be
decidedly inferior to governments carried on upon different principles.
Mr. President, I have not believed that to be true. I do
not believe it to be true. I could not believe it and not de-
spair of the future of our civilization; for more and more the
control of all foreign as well as domestic affairs is coming into
the hands of democracy. More and more the judgment of the
great body of the people determines the actions of secretaries
of state and ministers of foreign affairs and foreign ambassa-
dors and ministers. If democracy is incompetent to deal
with foreign affairs, more and more the world will return to
the chaos of international strife and war.
PANAMA CANAL TOLLS
311
Our country has taught the world the most valuable lesson
of modern history, if not of all history, that a democracy is
competent to maintain within its own territory peace and
order with justice. Our democracy has set at naught all the
dismal forebodings of its enemies and compelled an unwilling
assent from the Governments of the world to its entire com-
petency to rule itself. I have believed and I do believe that
the power of a developing democracy is competent to the
maintenance of international peace and justice, to substitute
kindly consideration, the mutual courtesy and forgiveness
of international brotherhood for the hatred and strife of
monarchical and dynastic rule.
Our democracy has assumed a great duty and asserts a
mighty power. I have hoped that all diplomacy would be
made better, purer, nobler, placed on a higher plane, because
America was a democracy. I believe it has been; I believe
that during all our history the right-thinking, the peace-
loving, the justice-loving people of America have sweetened
and ennobled and elevated the intercourse of nations with
each other; and I believe that now is a great opportunity for
another step forward in that beneficent and noble purpose
for civilization that goes far beyond and rises far above the
mere question of tolls or a mere question with England. It
is the conduct of our nation in conformity with the highest
principles of ethics and the highest dictates of that religion
which aims to make the men of all the races of the earth
brothers in the end.
Mr. President, the noble American who negotiated this
treaty as Secretary of State did his share in his time toward
accomplishing the beneficent work of ennobling diplomacy
and the relations of states. He did it with purest patriotism
and the most unswerving devotion to the interests of his own
country; and I cannot but feel that in preventing our coun-
try from repudiating the obligation into which he entered to
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INTERNATIONAL SUBJECTS
make possible the great work of the canal, we are rendering a
service to his memory that must be grateful to his friends. I
recall something that he said that is worth remembering
when we are dealing with his work and thinking of the spirit
in which he wrought. I ask you to listen to it:
There are many crosses and trials in the life of one who is endeavoring
to serve the commonwealth, but there are also two permanent sources of
comfort. One is the support and sympathy of honest and reasonable
people. The other is the conviction dwelling forever, like a well of living
water, in the hearts of all of us who have faith in the country, that all we
do, in the fear of God and the love of the land, will somehow be overruled
to the public good; and that even our errors and failures cannot greatly
check the irresistible onward march of this mighty republic, the con-
summate evolution of countless ages, called by divine voices to a destiny
grander and brighter than we can conceive, and moving always, con-
sciously or unconsciously, along lines of beneficent achievement whose
constant aims and ultimate ends are peace and righteousness.
I invoke for the consideration of this obligation of honor
and good faith, which he assumed in our behalf and in the
name of our country, that nobility and largeness of spirit
which he exhibited and illustrated in his life.
THE TREATY OF 1832 WITH RUSSIA
THE RIGHT OF EXPATRIATION
December 19, 1911. The Senate having under consideration the joint resolu-
tion (H.J. Res. 166) providing for the termination of the Treaty of 1832 between the
United States and Russia. The joint resolution was approved by the President
December 21, 1911.
The first article of the treaty of December 18, 1832, between Russia and the
United States, reads as follows:
There shall be between the territories of the high contracting parties, a
reciprocal liberty of commerce and navigation. The inhabitants of their
respective states shall mutually have liberty to enter the ports, places, and
rivers of the territories of each party, wherever foreign commerce is permitted.
They shall be at liberty to sojourn and reside in all parts whatsoever of said
territories, in order to attend to their affairs, and they shall enjoy, to that
effect, the same security and protection as natives of the country wherein they
reside, on condition of their submitting to the laws and ordinances there
prevailing, and particularly to the regulations in force concerning commerce.
Article 10 of the treaty provided that certain concessions previously set out in the
article “ shall not derogate, in any manner, from the force of the laws already pub-
lished, or which may hereafter be published by His Majesty the Emperor of all the
Russias: to prevent the emigration of his subjects.”
Difficulties having arisen between the two governments concerning Russian
subjects of the Jewish faith who had come to the United States and after acquiring
American citizenship, sought to return to Russia, the refusal of the Russian Govern-
ment to admit such persons and to give them the privileges accorded to other
American citizens under this treaty; the insistence of the Russian authorities that
there should be noted upon the passports issued to such citizens that the bearers
were persons of the Jewish faith, caused great friction between the two countries
and led to a joint resolution of Congress, introduced December 4, 1911, in the
House, to abrogate the Treaty of 1832. The resolution as passed by both Houses and
signed by the President, read as follows:
WHEREAS, the treaty of commerce and navigation between the United States
and Russia, concluded on the eighteenth day of December, eighteen hundred
and thirty-two, provides in Article XII thereof that it “ shall continue in force
until the first day of January, in the year of our Lord eighteen hundred and
thirty-nine, and if, one year before that day, one of the high contracting parties
shall not have announced to the other, by an official notification, its intention
to arrest the operation thereof, this treaty shall remain obligatory one year
beyond that day, and so on until the expiration of the year which shall com-
mence after the date of a similar notification”; and
Whereas, on the seventeenth day of December, nineteen hundred and
eleven, the President caused to be delivered to the Imperial Russian Govern-
ment, by the American Ambassador at Saint Petersburg, an official notification
313
314
INTERNATIONAL SUBJECTS
on behalf of the Government of the United States, announcing intention to
terminate the operation of this treaty upon the expiration of the year commenc-
ing on the first of January, nineteen hundred and twelve; and
Whereas, said treaty is no longer responsive in various respects to the
political principles and commercial needs of the two countries; and
Whereas, the constructions placed thereon by the respective contracting
parties differ upon matters of fundamental importance and interest to each:
Therefore be it
Resolved by the Senate and House of Representatives of the United States of
America in Congress assembled, That the notice thus given by the President of
the United States to the Government of the Empire of Russia to terminate said
treaty in accordance with the terms of the treaty is hereby adopted and ratified.
W
ERE it not for the references made by the senior Sen-
ator from Maryland [Mr. Rayner) in his very eloquent
address this morning to some statements made and positions
taken by me I should not venture to detain the Senate from
a vote on these resolutions by any observations of mine.
What the Senator from Maryland referred to was a brief
statement which I made in the Committee on Foreign Rela-
tions both as to my position and as to the reasons which
led to it. Of course, the remarks made in the committee have
vanished in thin air and enter into no record; and accord-
ingly the very brief and partial observations of the Senator
from Maryland alone remain. I will endeavor to state
substantially what I stated in the committee.
I am clearly of the opinion that the United States ought to
terminate the Treaty of 1832 with Russia. I do not think,
however, that the House resolution which was addressed to
that end contains an adequate statement of the reasons
why we ought to terminate the treaty, and I do think that
the language of that House resolution is in some respects
unfortunate.
If the treaty, Mr. President, properly construed, construed
as we think it should be construed, would be adequate to
meet the needs of our people and would be in conformity to
the political principles which we profess, then I should say
that instead of abrogating the treaty it would be appropriate
TREATY WITH RUSSIA
315
to assert our construction and to call upon Russia as a co-
signatory with us of The Hague conventions regarding the
peaceable settlement of international differences to submit
the true construction of the treaty to arbitration; and then,
if the decision was against us, we could take whatever course
appeared to be wise at that time.
The trouble with taking any such course, however, is that
no matter how this treaty is construed, no matter how any
real question of difference between us and Russia regarding
the construction is resolved, the treaty is and must always
remain an unsatisfactory and injurious instrument for us to
continue by our assent.
During the eighty years which have elapsed since the mak-
ing of the treaty, there has been a very momentous change in
the attitude of the greater part of the civilized world toward
the subject matter of the treaty, and we have shared in that
change.
The treaty in its first article provides that the inhabitants
of the respective states shall have liberty to go into each
other's territories on condition of their submitting to the
laws and ordinances there prevailing, and particularly to
the regulations in force concerning commerce; and the tenth
article of the treaty concludes with this paragraph:
But this article shall not derogate in any manner from the force of the
laws already published, or which may hereafter be published by His Majesty
the Emperor of all the Russias, to prevent the emigration of his subjects.
There is what appears to be and is generally considered to
be a clear recognition on the part of the United States of the
right of Russia to prohibit the emigration of her subjects.
In 1832, when this treaty was made, the United States
equally with Russia maintained the doctrine of indefeasible
allegiance. Only shortly before, in the year 1797, the Su-
preme Court of the United States had asserted that doctrine
in the famous Williams case.
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INTERNATIONAL SUBJECTS
Williams was a native American citizen. He had left our
country. He had gone to France. He had become natural-
ized as a French citizen. He had entered into the military
or naval forces of France and taken part in conflicts between
France and Great Britain. The course that he followed was a
course that was forbidden by the laws of the United States to
American citizens; and sometime afterwards, returning to
this country upon a visit, Williams was arrested, indicted,
and tried for a violation of those laws. He pleaded and un-
dertook to prove that he had renounced his allegiance to the
United States and had become a French citizen, and that
evidence was excluded; and the exclusion was sustained by
the Supreme Court of the United States upon the ground that
he could not divest himself of his allegiance to his native
country and become a citizen of another country.
In 1830, immediately before the negotiation of this treaty,
there came up in the Supreme Court of the United States the
case of Shank v. Dupont, which turned upon the question
whether a citizen could divest himself of citizenship and ac-
quire citizenship in another country. The Supreme Court of
the United States, Mr. Justice Story delivering the opinion,
said:
The general doctrine is that no persons can, by any act of their own,
without the consent of the Government, put off their allegiance and
become aliens.
And the case was decided on that ground.
In that same year Mr. Kent, in his Commentaries, which
were published from 1826 to 1830, declared the general rule
maintained by the United States to be the rule of the common
law of England of indefeasible allegiance.
So, when this treaty was made and we gave our express
recognition of the right of the Emperor of Russia tomake laws
to prevent the emigration of his subjects, it was a treaty be-
tween two powers both of which maintained that no subject
TREATY WITH RUSSIA
317
or citizen of theirs could ever emigrate to the other country
and become a citizen of the other country without the express
assent of his native land.
That, sir, was the universal doctrine of the civilized world
at that time. We held to that doctrine for many years, until
in 1848, James Buchanan - to his eternal credit be it said --
as Secretary of State of the United States, first announced
the repudiation by the Government of the United States of
that theory and declared the inalienable right of man to
change his domicile and to change his allegiance at his own
will.
There were varying views expressed. After Mr. Buchanan,
with views reverting to the old doctrine, came Webster and
Everett and Marcy, until Buchanan became President, and
then he again asserted his view, and so effectively that it has
never been departed from by the United States. It was as-
serted by Buchanan as President. It was reasoned out by
Jeremiah Black as Attorney-General of the United States, in
dealing with the Ernst case, that arose regarding the effect of
the naturalization here of a citizen of Hanover. In that case,
by the action of these great statesmen, to whom sufficient
honor has never been given for the firmness and constancy
with which they asserted that view — in that case the posi-
tion of the United States was irrevocably changed, repudiat-
ing the view she had taken at the time this treaty was made
and repudiating the view under which she gave in this treaty
her assent to the right of the Emperor of Russia to prevent
the emigration of his subjects.
Of course, sir, this change had come along with a change in
conditions. When this treaty was made, the great tide of
immigration to this country had not begun. It came first
after the famine in Ireland in 1843. It was swelled by a
stream from a different source after the political troubles on
the Continent in 1848. It was still increased through the
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INTERNATIONAL SUBJECTS
continual succession of wars in which Europe was engaged for
the quarter of a century beginning with the Crimean War in
1853.
In the meantime, whereas the greatest number of immi-
grants that ever came to these shores, prior to 1832, was
found in the immigration, I think, of 1830, of 27,382, and
whereas the first year when the immigration passed a hun-
dred thousand was in 1842, when it reached 104,565, this
stream swelled still year after year until hundreds of thou-
sands grew to millions, and a very large part of our people
came to be composed either of emigrants or the children of
emigrants; and our repudiation of the old doctrine of inde-
feasible allegiance was a repudiation based upon that clearer
view which came from an immediate contact with the living
needs of mankind as exhibited by those who came to us from
their old homes.
This process, Mr. President, greatly accelerated by the
active interest excited in the Warren and Costello cases with
Great Britain in 1866, culminated and found its compre-
hensive and effective declaration on the part of Congress in
the statute of July 27, 1868, which has been referred to by
both the Senator from Maryland and the Senator from
Massachusetts. That statute recites:
Whereas the right of expatriation is a natural and inherent right of all
people.
And then it proceeds to use terms which are pointed
directly at and are designed to do away completely with the
effect of all the expressions to which I have referred during
the period of time in which the United States maintained the
doctrine of indefeasible allegiance. It was the clear intention
of Congress in passing that statute not to deny that we had
ever maintained the doctrine, but to give clear notice that we
wiped out the past and took a new departure; for the statute
says:
TREATY WITH RUSSIA
319
}
Any declaration, instruction, opinion, order, or decision of any officers
of this Government which denies, restricts, impairs, or questions the right
of expatriation is hereby declared inconsistent with the fundamental
principles of this Government.
That comes very near, Mr. President, the repeal of this
treaty which gives assent to the right of the Emperor of all
the Russias to prevent by law the emigration of his subjects.
It clearly establishes a position on the part of the United
States wholly inconsistent with the treaty in that respect.
With this radical change in position, sir, the representa-
tives of the United States in its foreign policy began upon a
process which I think has rarely been equaled in the records
of any nation - a process most creditable to the good sense
and wisdom of the American people and of their representa-
tives, and which, by steady, temperate, and judicious rep-
resentation and appeal to friendship, to reason, to justice,
to the desire for good-fellowship and friendly relations, has,
step by step, brought nearly all the governments of the
civilized nations of the earth to leave the old position and to
stand by the side of the United States in the new.
By the Bancroft treaties of 1868, the year in which this
statute was passed, the adhesion of the North German Con-
federation and substantially all of the states which now make
up the German Empire was secured to the doctrine of the
right of expatriation and change of allegiance. By the treaty
of May 26, 1869, with Sweden and Norway, and of July 20,
1872, with Denmark, the adhesion of the Scandinavian states
to the same doctrine of international human freedom was
secured. By the treaty of May 13, 1870, Great Britain was
brought to abandon the immemorial rule of her common law,
whence we derived our doctrine of indefeasible allegiance and
to adhere to the new rule. By the treaty of November 16,
1868, Belgium adhered, and by the treaty of September 20,
1870, Austria-Hungary came into the same category.
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INTERNATIONAL SUBJECTS
So you will perceive, Mr. President, that step by step we
secured the adoption of the new rule answering to the suc-
cessive waves of immigration to our shores from different
countries. The Irish immigration was set free by the treaty
with England; the Scandinavian immigration was set free
by the treaties with Sweden and Norway and Denmark; the
German immigration was set free by the Bancroft treaties
with the German states. The Hungarian immigration was
cared for, together with the immigration of Croats and Slavs
and other Austrian peoples, by the treaty with Austria-
Hungary. France and Italy in their treaties of commerce
and navigation with us omitted the last clause as contained
in article 10 of the Russian treaty, and in their laws have
recognized the right of emigration and naturalization.
The position to which the world was brought by this long
course of diplomatic effort and achievement is well stated by
a very celebrated Russian publicist, Frederick de Martens,
in his recent work entitled Traité de droit international. I
translate from the French. He says:
With the exception of Russia, all the civilized contemporaneous states
are imbued with the conviction that the right of emigration is one of the
inalienable rights pertaining to each citizen, and that every individual is
free to change his nationality. This modification has taken place, thanks
above all to the profound transformation which has followed in the present
century the old political order. Liberty of emigration is the direct conse-
quence of the new social and political order which has for its basis respect
for the human personality and for the interests which surround it.
So, Mr. President, the maintenance of this treaty is wholly
inconsistent with the solemnly declared principles of the
United States. It is a part of an old condition of things long
since passed away. It is inconsistent with the view taken by
the greater part of the civilized world, and I consider that the
first and great reason for ending the treaty is that we may
set ourselves right with our own principles and no longer
occupy the false position of consenting to that negation of our
TREATY WITH RUSSIA
321
principles which is involved in the assent to the preven-
tion by the Emperor of Russia of the emigration of his own
subjects.
And, Mr. President, no change in construction of the treaty
that we can expect, that we can look forward to from diplo-
macy or from the result of an arbitration, could possibly
change this characteristic of the treaty. The time has clearly
come - I think the time had come when we passed that
statute in 1868, but the time has clearly come now - when
consistency and regard for our own principles require us to
do what the treaty contemplated — to say that the change of
conditions calls upon us to give the notice provided for its
termination.
Mr. President, that characteristic of the treaty covers
really the great part; it covers the greater part of the field.
While it is doubtless true that some native-born Americans
have been excluded from Russia when they ought not to have
been excluded under the treaty, while it is doubtless true
that Russia puts upon the treaty a construction differing
from ours as to the nature of the regulations which she is
entitled to impose upon American citizens who are Jews,
when they come into her territory, still the number of such
people is comparatively small, and the great field is the field
which affects these millions of new arrivals here who have
intimate and direct relations with the country from which
they came and from which they are cut off by virtue of
the necessary construction of this treaty and by virtue of the
severe statutes which the Senator from Maryland has read.
Mr. BAILEY. If it would not interrupt the Senator from
New York just now, I should like to ask him how he recon-
ciles the declaration that the right of expatriation is both a
natural and a political right, with our Chinese policy. If a
Chinaman has a natural and political right to come to this
country, then we can have no right to forbid his coming; and
322
INTERNATIONAL SUBJECTS
1
go to
wholly independent of the question now under consideration,
I would not like to commit myself to the extent of conceding
that.
Mr. Root. Mr. President, the Senator from Texas has
given to the declaration of the right of expatriation a meaning
which goes further than I think is warranted.
I have planted myself upon the declaration of the statute of
1868, which I think is the final and authoritative declaration
of the policy and the view of this country. The right of ex-
patriation is the right of a man to leave his country and
another, but it carries no right on his part to force himself
into any other country that chooses to reject him.
Mr. BAILEY. But, Mr. President, if the Senator will per-
mit me, the right to leave your own country is a barren one
unless you can go into some other country. If every country
on the globe would adopt our policy against Chinese immi-
gration, then the Chinaman would have a right to leave his
country, but there would be no country to which he could go,
and his right would be an utterly barren one.
Mr. Root. I think entirely so.
Mr. BAILEY. I can hardly bring myself to think that logi-
cally there is a natural right which can be defeated by the
action of other people. I will say to the Senator from New
York if the Chinese question had been as vital then as it is
now, I very seriously doubt if the statute of 1868 would have
been quite as broad as it is.
Mr. Root. That may be. I am not going to discuss the
Chinese question further than to take advantage of the atten-
tion called to it by the Senator from Texas, to say that it be-
hooves us to be quite conservative and cautious in the official
use of language about this Russian treaty, lest we find our-
selves in a moment of enthusiasm or irritation betrayed into
an assertion of propositions which will come back to plague
us when they are turned the other way.
TREATY WITH RUSSIA
323
One very good reason, Mr. President, for giving the notice
to terminate this treaty in simple terms and without under-
taking to specify reasons is that there are many, I
suppose
millions, of subjects of Russia of Mongolian birth, whom we
would not admit to our country, treaty or no treaty, and
we had better not undertake to specify reasons which will in-
volve us in making nice discriminations in regard to the dif-
ference between Russia's admitting American citizens there
and our admitting Russian subjects here, in advance of
thorough and careful consideration of the true meaning and
effect of what we say.
There is one other reason, Mr. President, why this treaty is
not satisfactory, and that is, it is exceedingly limited in its
scope. The construction generally put upon it is, that it
applies to entering Russia only for commercial purposes. I
do not know that that can be successfully contested. So the
treaty itself and all questions regarding the proper enforce-
ment and construction of the treaty cover but a small corner
of the real difficulty. The only way to solve the difficulty is
to get rid of the treaty and begin anew. In doing that, sir,
we will avoid one very serious objection which now exists to
our relations with Russia.
When the treaty has been terminated, if no new treaty
is made in its place, nobody from the United States will have
a right to enter Russia. In that event the effect will not
be to admit to Russia the people who have been denied
entrance there, but it will be to exclude from Russia all other
Americans.
That in some respects would be unfortunate, but, Mr.
President, it would be better than the present. It is better
that there should not be any discrimination which constitutes
two sharply separated classes of our citizens. I would rather
have one great body of American citizens who have no right
to enter a foreign land than to have two bodies of American
324
INTERNATIONAL SUBJECTS
citizens one of which has the right under our treaties to enter
and the other of which has no right.
So, while I hope that a new treaty will be made, which will
give the right of entry to those who have not had it hitherto,
and I think it is the duty of our Government to bend every
effort toward bringing that about, still, if we must go with no
treaty, I shall be better satisfied than to have this treaty of
discrimination continued.
Now a word, Mr. President, regarding the terms that we
are to use. Of course there is occasion to be more guarded in
language between sovereign states, which have over them
nobody to control their action, than there is between men,
who can be obliged to keep the peace by police officers and
· the law. The peace of the world rests upon the observance
of studied and careful courtesy in the relations between
nations.
Mr. President, among men there are more quarrels, there
are more assaults, there are more murders brought about by
insults, by wounded feelings, and injured honor than there
are by the deprivation of property or injury to pecuniary
rights. Among nations it is doubly so, because a jealous
regard for independence and national honor are the part
of patriotism the world over. No one can respect a man
who does not resent an insult to his country. No people on
earth are quicker to resent it than the people of the United
States,
It is difficult for men in one country to realize how their
words will be understood and received in another country.
You and I are in the habit of thinking alike, talking alike.
We are in the same surroundings. We can understand what
impulses and feelings move each other. When we are using
words which relate to people far away, on the other side of
the earth, we can know but little of the weight, stress, and
effect which will be produced in those far distant and alien
TREATY WITH RUSSIA
325
lands. Different conditions may give new and different
meanings to the words.
So it is that for the peace of the world, that nations may so
conduct their affairs as to enable their people to live in peace
and prosperity, it has come to be the universal custom to use
especially guarded and courteous terms in diplomatic inter-
course. It is not frill and nonsense; it is not fancy or fad;
it is the teaching of the universal experience of civilization.
I am most anxious that in adopting a resolution to put an
end to this treaty we should do it in accordance with that
obligation of courtesy and respect which the peace and
dignity of mankind require.
Mr. President, accusations of violations of duty, imputa-
tion, insinuations, all controversial matter should be ex-
cluded from a resolution like this. If we assert our adherence
to a great principle of acknowledged right as a reason for
putting an end to this treaty we imply that Russia is opposed
to it. We cannot vaunt ourselves, our principles, our virtues,
our love of freedom in this resolution, without implying a
charge against Russia that she is without them.
Mr. President, were it true, what would be the effect of a
charge made expressly or by implication but to begin a con-
troversy ? Are we desirous to end this treaty and to secure a
better one, or are we desirous to begin a controversy that will
end we cannot tell where ?
Mr. President, let me say one further thing. If in this
resolution we depart from that dignified and courteous treat-
ment which the customs of international intercourse through-
out the world require, the sympathy of every civilized people
on the face of the earth will be with the nation that has been
offended, and the tremendous power of the public opinion of
mankind will be behind a refusal of all the efforts of our
diplomacy to secure a new arrangement which may benefit
our fellow-citizens with whose woes we sympathize so deeply.
326
INTERNATIONAL SUBJECTS
It not only will affect us in this particular case, but it will
affect the position, the prestige, the good name, and credit of
our country in all its foreign relations. It will leave a condi-
tion of feeling between us and Russia, our traditional friend,
which it would take generations to do away, and it will leave
us in all the countries of the world lower in credit and less
esteemed than we have been hitherto.
THE MEXICAN RESOLUTION
On April 21, 1914, the Senate as in Committee of the Whole had under con-
sideration the joint resolution (H. J. Res. 251), which declared:
That the President of the United States is justified in the employment of the
armed forces of the United States to enforce the demands made upon Vic-
toriano Huerta for unequivocal amends to the Government of the United
States for affronts and indignities committed against this Government by
General Huerta and his representatives.
To this resolution Senator Henry Cabot Lodge of Massachusetts proposed
substitute which further provided:
That the United States disclaims any hostility to the Mexican people or any
purpose to make war upon Mexico.
As thus amended, the resolution passed the Senate and was agreed to by the
House of Representatives, Sixty-third Congress, Second session.
Mr. Root said:
M:
R. PRESIDENT, I shall not prolong very much this
discussion, for I think that whatever action we take
ought to be taken today without further delay. I do wish,
however, to state the reasons for supporting the substitute
offered by the Senator from Massachusetts [Mr. Lodge) in
lieu of the resolution reported by the Committee on Foreign
Relations.
The President has asked Congress for its approval of a
course which he purposed to follow to compel amends for an
insult to the flag of the United States. A resolution has come
from the House declaring that the President is justified in the
course he proposes and naming General Huerta as the person
against whom the present action is understood to be directed.
The Committee on Foreign Relations has reported a substi-
tute resolution which omits all reference by name to General
Huerta, but so refers to the statements made by the President
in his address that in explaining the justification of the course
which he proposes, the effect is substantially the same. We
are not asked to authorize action; we are asked to justify it.
327
328
INTERNATIONAL SUBJECTS
Mr. President, I have the highest respect - more than
respect, I have regard and admiration – for the President of
the United States. I have entire confidence in the sincerity
of his purpose, in the lofty quality of the ideals which he
pursues, and in the genuineness of his adherence to peace.
But we are asked not to express our opinion of the Presi-
dent of the United States, not to express our confidence in
him or in his purposes. We are asked in the exercise of our
duty as a part of the Government of the United States to
declare a specified course of conduct under specified condi-
tions to be justified. It is our duty that we are to perform,
our duty as a part of the Government of the United States,
our duty to the hundred millions of people of the United
States, to the community of nations, to the credit and good
name of our country, to the honor and glory that this great
democracy has intrusted to our hands as its representatives.
This duty we are called upon to perform.
The course which is proposed is the forcible armed com-
pulsion of the people or some of the people of a friendly
nation, the armed compulsion of a government which I think
we all are agreed is an existing de facto government, having
in its control the greater part of the territory of Mexico
the armed compulsion of that government to make amends
to the United States for an insult to its flag.
What is the justification ? We cannot justify, sir, upon
confidence which we all have in the President. We must
justify upon grounds which commend themselves to our con-
sciences, to our intelligence, to the conscience of the Amer-
ican people, and to the deliberate judgment of the civilized
world.
What is the justification ? Observe, sir, I do not say that
there is no justification. I ask what it is. In the address of
the President, in the plain implications and exclusive infer-
ences of the resolution which came from the House, and
THE MEXICAN RESOLUTION
329
equally in the resolution reported by the committee, the
justification is to be found in a single incident. That incident
was this: A boat-load of sailors in the uniform of the United
States, upon a boat flying the flag of the United States,
landed the other day at a wharf in Tampico and were arrested
by an officer in charge of a guard, taken through the streets,
presently returned to the boat and set free - a very gross
offense to the dignity of the United States, an insult which
cannot be ignored.
But, sir, immediate amends were made. The action of the
officer who made the arrest was disavowed by the govern-
ment under which he served, the de facto government of
Mexico, under the de facto presidency of General Huerta.
It is stated that the officer was in turn arrested and was to
be punished. The commandant at Tampico apologized for
the act, and promptly upon being advised of the circum-
stance, the head of the de facto government, General Huerta,
also apologized. Those amends, which would be all that
could be expected from private individuals, were, neverthe-
less, not satisfactory and not sufficient for the officer in com-
mand of the American fleet or squadron at Tampico, and he
demanded a formal salute to the American flag.
Mr. President, I agree with the admiral that the amends
were not sufficient as coming from the de facto government
and that there should have been a salute to the American flag,
but it appears that there was an interposition by our Govern-
ment; there were communications between our State Depart-
ment and our charge in the City of Mexico, representations
to the de facto government in Mexico, negotiations and
conversations, as to the character of the further amends that
should be made. The matter came plainly to be a discussion
between the Government of the United States and the de
facto government of Mexico. Not about the quality of the
act that was done; there is no dispute about that. Not about
330
INTERNATIONAL SUBJECTS
the obligation to make amends; that was done. Not
about the obligation to apologize; the apologies were made.
But about the form of further amends, how a salute should
be fired, what were the proper and customary obligatory
incidents in the way of returning such a salute, and the
number of guns which should be fired. It is upon that dis-
pute - upon a dispute between these two Governments
about the number of guns that are to be fired and about
what the proper custom is as to returning the salute when
it is fired -- it is upon that dispute that this justification is
made to rest in the resolution passed by the other House
and in the resolution reported by the Committee on Foreign
Relations of the Senate.
Mr. President, I feel bound to say that while I would never
for a moment fail so far as in me lay in preserving the dignity
and honor of the flag of the United States, the dispute to
which this incident has come seems to be painfully inade-
quate to the results which are to be drawn from it. If that
is all — if there is nothing else except a question of the
number of guns and the form and manner of salute - which
stands between the hundred million people of the United
States and this poor, harried, and distressed people, it seems
to me that the occasion is painfully inadequate to the results
that are to follow.
Is that all ? We learn tonight that Vera Cruz has fallen,
that four American marines lie dead in that city, and that
twenty-one lie suffering from wounds. Is there nothing but
this dispute about the number of guns and the form and cere-
mony of a salute to justify the sacrifice of those American lives?
O Mr. President, deeply and sincerely as the President of
the United States desires to limit the scope of his action,
deeply and sincerely as he desires the maintenance of peace,
all history and human experience teach us that once lighted,
the fires of war cannot be quenched at will.
THE MEXICAN RESOLUTION
331
It is intervention, technically, but it is war in its essence
that we are to vote to justify tonight. How long it will
continue, what its results and its incidents will be, no man
can state. Men will die, men dear to us will die, because of
the action that we are to approve tonight. American homes
will be desolate; American women will mourn; American
children will go through life fatherless, because of the action
that we are to approve tonight; and when those children,
grown to manhood, turn back the page to learn in what
cause their fathers died, are they to find that it was about a
quarrel as to the number of guns and the form and ceremony
of a salute, and nothing else ?
We are to justify. What is the justification ? Is there none
but that ? We, the representatives of the great peace-loving
nation; we, the representatives of the great democracy that
prides itself upon demonstrating to the world that democracy
can be peaceful and just; we are to justify these acts of war;
and is there no justification that we can lay before our coun-
trymen, before the world, before the community of nations,
before the judgment seat of history, except our dispute about
the number of guns and the form and method of a salute ?
O Mr. President, how inadequate! How can we justify our-
selves if we have no justification but that ?
But, sir, that is not all. If it had been all, the President
would not have come to the Congress yesterday; if it had
been all, we would not be discussing the subject here tonight.
Back of the incident, back of the special circumstance which
forms the whole of the resolution reported by the committee,
there is a great array of facts, a long, dreadful history. Mr.
President, if there were nothing else but the incident referred
to in the resolution, would the American Government have
thought for a moment of treating this poor, weak country in
this peremptory way ? Such things have happened hundreds
of times before. Ignorant subalterns have many and many
332
INTERNATIONAL SUBJECTS
a time transgressed the limits of propriety, mistaken their
duty and their powers, and have done acts which were insults
to great governments. It has often occurred in the history
of the United States. What have we done? what would we
do today if a subordinate officer in a port of England or
France or Germany or Italy were to mistake his duty, make
an arrest of American sailors, as American sailors have been
arrested before, and the act were disavowed by the Govern-
ment he served and an apology were made, and regret was
expressed, and an intention to punish him was expressed
what would we do about the form and method of further
amends ? Sir, in the first place, we would settle the facts.
We are now engaged in signing a series of treaties designed
to take in all the world, and already a very large number of
nations of the world have signed, under which we agree with
them that if there be any dispute about any question of fact
a commission shall investigate and report, and no action shall
be taken for one year, to allow the report to be made. We
find here that, while our admiral reported that the American
flag was flying on the boat, the Mexican officer reported to
General Huerta that no flag was flying. I believe our admiral
but can we think it strange that General Huerta believed his
officer? If there were nothing else—if this were all ---should
not that question of fact be determined by peaceful means?
The question of the proper, appropriate, and customary
form and method of a salute is a matter of precedent and the
usage of nations. It is the universal custom of civilized na-
tions to present in diplomatic communications the prece-
dents, the authorities showing that the custom contended
for by one country is the true custom and that the other
country is mistaken. In the case that I suppose, of such an
incident occurring in a port of France or Germany or Eng-
land or Italy, sir, we would have presented our facts, investi-
gated the facts, made certain and clear the facts, presented
THE MEXICAN RESOLUTION
333
the authorities upon precedent and custom, and by peaceable
and friendly communication would have reached a result.
If that were all, that is what we would do. If this be all,
is this nation of a hundred millions, the richest upon earth,
with its mighty power, to treat poor, weak, bankrupt, down-
trodden, distressed, despairing Mexico in any less kindly and
just a way? If this be all, how can we, in the arrogance of
power, justify treating this weak neighbor with a peremptory
harshness that we would not think of using toward a powerful
nation ?
Mr. President, what I have said is what the good people of
our country and of the world will think, if we finish our work
tonight by the adoption of the resolution reported by the
committee. There is no justification for us there. No; by
the expression of one thing, the dispute about the salute, we
commit ourselves to the exclusion of all other justifications.
We commit ourselves to a condemnation that will weigh
heavily upon the heart of many a good American who loves
his country and her honor, and which as time goes on, and
the judgment of the world and of the future is made up, will
grow darker and darker.
But, Mr. President, it is not all -- it is not all. There is
matter of justification; and the Senator from Massachusetts
[Mr. Lodge) has sought to lay it before the people of America
and of Mexico and of the community of nations by the recital
in the substitute resolution which he offers. What is it? It
is that lying behind the insult to our flag by this poor,
ignorant subordinate are years of violence and anarchy in
Mexico. Lying behind it are hundreds of American lives
sacrificed, millions of American property destroyed, and
thousands of Americans reduced to poverty today through
the destruction of their property. Lying behind it is a condi-
tion of anarchy in Mexico which makes it impossible to
secure, by diplomatic means, protection for American life
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INTERNATIONAL SUBJECTS
and property in that country. Lying behind it is a condition
of affairs in Mexico which makes that country incapable of
performing its international obligations.
The insult to the flag is but a part — the culmination, if
you please — of a long series of violations of American rights,
a long series of violations of those rights which it is the duty
of our country to protect — violations not for the most part
of government, but made possible by the weakness of govern-
ment, because through that country range bands of free-
booters and chieftains like the captains of free companies,
without control or responsibility. Lying back of this incident
is a condition of things in Mexico which absolutely prevents
the protection of American life and property except through
respect for the American flag, the American uniform, the
American Government.
It is that which gives significance to the demand that
public respect shall be paid to the flag of the United States.
There is our justification. It is a justification lying not in
Victoriano Huerta or in his conduct alone, but in the uni-
versal condition of affairs in Mexico. The real object to be
attained by the course we are asked to approve is not the
gratification of personal pride; it is not the satisfaction of an
admiral or a Government. It is the preservation of the power
of the United States to protect its citizens under those
conditions.
If we omit from the resolution that shall be passed tonight
all reference to the matters that are enumerated in the sub-
stitute, we omit the real object which forms the only justifi-
cation for action. Without that, sir, upon the showing of the
resolution reported by the committee we would be everlast-
ingly wrong. With the facts that are enumerated in the
substitute the action of the United States will rest with
becoming sense of proportion and national dignity upon
adequate foundation and cause.
THE MEXICAN RESOLUTION
335
The Senator from Indiana (Mr. Shively] has observed, in
effect, that the substitute resolution thunders in the index.
Ah, Mr. President, the capture of Vera Cruz, the death of
American citizens, the wounds and sufferings of men who lie
there tonight demand something more than formal indict-
ment. The recitals of the substitute resolution are weak in
the face of death and wounds and sufferings of Americans in
Vera Cruz. No less than the substitute resolution avers can
justify us.
The conclusion of the substitute resolution, sir, is the same
as that of the other. It justifies the President in the same
course of conduct which the committee resolution justifies,
but it gives grounds. It gives substantial grounds. It gives
grounds creditable to the United States and adequate for the
proposed action, instead of leaving this momentous move-
ment of a great naval and military power to rest upon no
justification but a dispute with a weak and helpless adver-
sary about the number of guns and the proper ceremonies
of a salute.
THE SHIP PURCHASE BILL
On January 4, 1915, the Senate, as in Committee of the Whole, had under con-
sideration the bill (S. 6856) to authorize the United States, acting through a ship-
ping board, to subscribe to the capital stock of a corporation to be organized under
the laws of the United States or of a State thereof or of the District of Columbia, to
purchase, construct, equip, maintain, and operate merchant vessels in the foreign
trade of the United States, and for other purposes.
THE PRESIDENT Pro tempore. The bill is in Committee of the Whole
and open to amendment. Unless there is objection, the committee amend-
ments will be first considered. The Chair hears no objection.
Mr. Root said:
DO not wish at this time to enter upon a discussion of
the merits of this bill, but I do wish to say a very few
words regarding the discussion of the bill.
I think it is a bill of vast importance. I have known of no
measure laid before the Senate in the past half dozen years
which seemed to me weighted with such consequence as is
this bill.
There are three major lines of consideration, upon each one
of which we must regard this bill as of very great consequence
to the people of the country. The first and least is that it pro-
poses to embark the Government of the United States upon a
very large expense in a business venture of a kind in which
the private enterprise of the United States has uniformly
met with loss rather than profit, and it proposes to embark
the Government in such a venture practically without limit
imposed by the Congress of the United States.
that is the least of the reasons why this bill must be
regarded as of great importance. A second and more import-
ant reason is that it proposes to put the Government of the
United States into the foreign trade at a time when that trade
necessarily involves frequent, almost constant, questions of
critical importance, of great delicacy and difficulty, arising
1
I say
397
338
INTERNATIONAL SUBJECTS
under the law of nations regarding neutral and belligerent
rights. It proposes to put the Government of the United
States in a position where her good faith will be questioned,
where her violation of the law of nations will be asserted, if
any situations arise such as have been detailed to us within a
few days by the Senator from Montana (Mr. Walsh). It
proposes to create a condition where it will be no mere ques-
tion of an individual citizen of the United States undertaking
and succeeding or failing in carrying contraband to a bellig-
erent, but where the same state of facts will raise the ques-
tion of the United States violating its neutrality and taking
sides with one belligerent or another.
That is the second reason. The third is that this bill pro-
poses a reversal of the policy which has been followed by this
Government from the beginning. It proposes to embark the
Government of the United States in a business far more ex-
treme than would be the ownership of railroads, far more
extreme as an exercise of governmental authority than
would be the ownership of telegraph and telephone lines. It
proposes to put the Government of the United States in a
position where it will step in and remedy the defects, the
shortcomings, the failures of individual enterprise by raising
money by taxation from all the people in order to carry on
the business that individual enterprise has not carried on;
and that, sir, means a complete reversal of the policy of the
United States. It means a new departure on a line of Gov-
ernment action more important, more fateful in its results
than any act which has ever been passed by this Congress
since I, since you, Mr. President became a member of this
body. It means a repudiation more signal than has ever yet
been made of the principles of the great leader of the party
which “has the votes” to put this bill through.
Sir, there has been no discussion here since I have been in
this body so imperative in its demands upon the members of
THE SHIP PURCHASE BILL
339
the Senate as the discussion of this bill. There has been no
measure going so deep to the basis of our institutions as this
bill. It comes here, sir, under circumstances which are repug-
nant. There was no hearing before the committee of the
House on such a measure as we have before us. There was
no hearing before the committee of the Senate. The demand
for a hearing was refused, and the bill was reported speedily,
peremptorily, with but slight opportunity for discussion;
and now, sir, the Senator from Missouri, in advance, with
some show of feeling, which I know was evanescent and
which, I trust, does not even now continue, has stigmatized
all discussion of this bill on the part of the minority as
what were the words ? -“improper and unjustifiable.”
The Senator from Florida, with that kindliness and fairness
which always characterize him, has told us that there was no
disposition to interfere with the debate on this bill, but the
Senator from Missouri in advance gives notice to the country
that the debate on this bill is to be regarded as obstructive,
improper, and unjustifiable. I protest against any such spirit
dominating this body, whether it be on the part of those who
have the votes or not. May the time be far distant when
there is so little spirit of independence, so little courage, so
little loyalty to the duty of a minority in this body that such
a notice in advance is accepted without just resentment.
Mr. President, the discussion of measures in this body does
not consist alone in the making of speeches. We discuss
measures with but very few Senators here. There are not
twenty in the room at this moment. I counted them a few
minutes ago, and there were fourteen. What, then, is the
use of discussion ? The use is this, that every speech is going
to the country, that every hour passed is calling the attention
of the country to the measure. The people of the United
States begin to consider, begin to read, begin to discuss, and
gradually week by week they form their opinions, and their
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INTERNATIONAL SUBJECTS
opinions find their way back here. The process of discussion
results ultimately in the reaching of conclusions which are
conformable to the will and judgment of the people of the
United States. That, sir, is why the long, patient, and some-
times tedious discussion of questions in the Senate of the
United States is of vast utility, although we would suppose
that it was useless from counting the men who are listening
to the speeches which are made.
Now, Mr. President, this bill, fraught with such great
consequences, must have and shall have the kind of discus-
sion which brings these grave and serious questions before
the people of the United States and which enables them to
form their judgments upon the subjects which are involved.
SECOND SPEECH ON THE SHIP
PURCHASE BILL
* January 25, 1915, the Senate having been in continuous session, with recesses,
under the fiction of the legislative day of January 15, Mr. Root spoke again on the
Ship Purchase Bill, addressing himself particularly to the pending amendment of
Senator Henry Cabot Lodge, of Massachusetts, which was as follows:
Provided, That no vessels shall be purchased under this act which are the
property, in whole or in part, or which are in any manner controlled or sub-
sidized by any of the nations now at war, nor shall any vessels be purchased
under this act which are the property of any of the subjects or citizens of said
belligerent nations.
Mr. Root spoke a third time on this bill on February 9, 1915, addressing himself
to the national aspects of the proposed legislation. The Sixty-third Congress
adjourned sine die on March 4, 1915, without enacting this legislation,
WISH to address myself this morning to the amendment
to the pending ship purchase bill offered by the Senator
from Massachusetts [Mr. Lodge]. I may find it neces-
sary hereafter to speak upon another important phase of
the proposed legislation, but at present I speak upon that
alone.
I wish at the outset to say a few words regarding the discus-
sion of the measure. I hope I am not warped or carried away
by feeling or by any partisan considerations, but it does not
seem to me that this bill to put the Government of the United
States into the business of foreign shipping is receiving the
kind of discussion which a measure of great importance and
novelty ought to have. It is a very important measure. It is
important not merely because it involves the expenditure of a
vast sum of money at a time when we have been forced to
make up a deficit in our revenues by imposing an extraordi-
nary tax which we call the war-revenue tax, but it is impor-
tant because it embarks the Government of the United States
upon a new departure, based upon a reversal of the principles
841
342
INTERNATIONAL SUBJECTS
of government which we have always followed up to this time.
No such change of principle and policy was in the contempla-
tion of the people of the United States when the present
Administration was put into power by their votes. No such
reversal of principle and policy was ever discussed and passed
upon by the people of the United States in any election.
Plainly the judgment of the people should be taken, so far
as it is possible by the ordinary methods in which a free,
self-governing people proceed with the conduct of their
Government. Plainly if there be any strength or virtue in
our representative government, such a new departure and
reversal of principle and policy should have the fullest pos-
sible discussion in the great public forum of the Congress of
the United States. Is this measure receiving that ? It
seems to me, sir, that it is not.
The bill in its present form was reported on the sixth of Jan-
uary. During the month before, in December, it had been
introduced by the Senator from Missouri [Mr. Stone] and
referred to the Committee on Commerce. It was reported by
that committee without hearing and without any extended
consideration or discussion in the committee.
The bill was brought before the Senate for consideration,
if I am not mistaken in my dates, on the fourth day of the
present month, and the Senator from Florida presented in a
brief and not exhaustive or extensive manner the report in
favor of the bill. Upon that day notice was given that dis-
cussion of the bill by the minority in the Senate would be re-
garded as improper and obstructive. Those are substantially
the words that were used by the senior Senator from Missouri
[Mr. Stone]. Notice was given which stigmatized all discus-
sion of the bill by the minority as obstructive and improper.
Mr. FLETCHER. May I interrupt the Senator ?
The VICE-PRESIDENT. Does the Senator from New York
yield to the Senator from Florida ?
THE SHIP PURCHASE BILL
343
Mr. Root. Certainly.
Mr. FLETCHER. May I inquire who gave that notice ?
Mr. Root. The Senator from Missouri [Mr. Stone) gave
that notice.
Mr. FLETCHER. I certainly did not myself, because I
stated postively that we would afford ample opportunity for
full discussion.
Mr. Root. The Senator from Missouri, who introduced
the bill, gave the notice, and he accompanied it by the state-
ment that they had the votes to pass the bill. In advance
of any discussion, in advance of any consideration, the
notice was given that the majority in the Senate had the
votes to pass the bill.
Mr. STONE. Mr. President, I was looking for the record of
exactly what occurred. I did look that up when the Senator
from New York made a statement somewhat similar to the
one which he repeats this morning, and I thought later to
have the exact facts shown from the record of what was said
repeated here. I am not able at this moment to turn to that
record, not recalling the exact time when the colloquies
occurred; but if the Senator will permit me a few moments,
as soon as I can look it up I will be very glad to have the
exact facts and everything that was said in consecutive order
stated. Now, Mr. President-
Mr. Root. Mr. President, it is not my purpose to yield the
floor.
Mr. STONE. I am not asking the Senator to yield the floor.
The VICE-PRESIDENT. The Chair would not rule that the
Senator from New York had yielded the floor.
Mr. Root. I say that because it is commonly reported
Mr. STONE. But the statement-
Mr. Root. That it will be regarded during the progress of
this debate as a yielding of the floor by the Senator holding it
if he permits any interruption for the purpose of any speech
I
344
INTERNATIONAL SUBJECTS
or business whatever - that is the understanding - except
the asking of a question.
Mr. STONE. Very well; I will wait until the Senator from
New York concludes his address, Mr. President, and then I
will produce the Record, for I am sure the Senator from New
York does not wish to make a misleading statement, although
a mistaken one.
Mr. Root. Mr. President, I do not wish to do the Senator
from Missouri any injustice. Like him, I have not examined
to get the precise words which were used. I am stating the
effect of what he said upon my mind, the effect upon the mind
of all the Senators about me, and upon the minds of all the
Senators with whom I have since conversed. The effect was
that the Senator from Missouri intended on the fourth of
January to give notice that discussion of this ship purchase
bill on this side of the aisle would be regarded as improper
and obstructive. He accompanied that by the statement:
We have the votes to put the bill through, unless it is pre-
vented from coming to a vote by improper or obstructive
tactics.” That was but the beginning.
Two days after this notice was given a substitute bill was
introduced striking out everything that had been in the
measure on the fourth of January and substituting an en-
tirely new measure, with much that was in the old, but a new
measure from beginning to end. Since that time we have not
been discussing this bill; there has been no discussion of this
bill in this representative body. Some of us who have been
opposed to the bill have been making speeches about it, but
the bill has not been discussed.
I have sat here and counted with wonder from time to time
the numbers of the majority who have been present while
men eminent for learning and experience and ability and
patriotism have been attempting to discuss the bill. I have
seen here four Democratic Senators present, three present,
THE SHIP PURCHASE BILL
345
one present. I marked the presence of but one Democratic
Senator in this Chamber by saying to the Senator from New
Hampshire [Mr. Gallinger): “If some one would call Mr.
Fletcher out of the Chamber, we might move to adjourn.
I say that has been the rule - one, three, four, five, half a
dozen Senators present while the Senator from Ohio [Mr.
Burton), the senior Senator from Iowa [Mr. Cummins), the
junior Senator from Massachusetts (Mr. Weeks), and the
senior Senator from Massachusetts (Mr. Lodge), have been
trying to perform their duty of discussing this great and
novel measure in the Senate of the United States. The men
who announced at the beginning that they had the votes to
carry the bill have been absent.
The Senator from Mississippi (Mr. Williams), with that
genial humor which so often brightens the closing hours of our
legislative days, had - I will not say the effrontery, but I
will say the disrespect, to tell the Senate that the speeches
made by these gentlemen were not worth listening to. He
said what was true, that he was not obliged to listen to the
Senator from Ohio or to the Senator from Massachusetts or
to the Senator from Iowa - that is true - but when having
been absent, not having heard one word, he comes into the
Senate and says they were not worth listening to, that they
were long speeches with nothing in them, he denies the effi-
cacy of the American system of representative government;
he discredits the Senate of the United States; for, sirs, there
is not now and never has been in our history a group of men
whose study and thought and expression upon great public
questions have been of greater value to the people of the
United States than the Senators whom I have pointed out
and who, the Senator from Mississippi says, are not worth
listening to.
Why is it, Mr. President, that this course has been fol-
lowed ? Not because the Senators upon the other side really
346
INTERNATIONAL SUBJECTS
believe that the contributions these Senators have made
to the discussion of this bill are not worth listening to,
but for a very different reason. It has not been the ordi-
nary fatigue or desire to attend to other business; it has
been for a specific purpose. Before I state that purpose,
let me add that not only had there been an announce-
ment at the beginning that you had the votes to pass the
bill and, subsequent to that, abstention from the meetings
of the Senate during our attempts at discussion; not only
has there been the open and public declaration that what
the ablest men in the minority had to say on this new sub-
ject is not worth listening to, but the rules of the Senate
have been so used, have been used in such an unusual
and extraordinary way as to make any attempt at discus-
sion upon this side of the Chamber most burdensome and
difficult.
I am now speaking on the twenty-fifth day of January, but
we are proceeding according to the Calendar of Business,
from which I read, and according to the order of the majority
of the Senate, upon the legislative day of Friday, January 15,
1915. Why is that fiction employed ?
Mr. HUGHES. Mr. President -
The VICE-PRESIDENT. Does the Senator from New York
yield to the Senator from New Jersey ?
Mr. Root. I yield so far as I may without losing the
floor.
Mr. HUGHES. I merely desire to ask the Senator if that
situation does not exist by virtue of unanimous consent
entered into in this body ?
Mr. Root. Mr. President, it does not exist by unanimous
consent.
Mr. HUGHES. Well, practically by unanimous consent.
Mr. Root. It does not exist practically by unanimous
consent. It exists against my open and vigorous objec-
THE SHIP PURCHASE BILL -
347
tion, and it exists because of the voting down of a motion
to adjourn made by the junior Senator from Pennsylvania
[Mr. Oliver) and the carrying by the majority of a motion
for a recess until eleven o'clock, instead of the ordinary
adjournment.
Mr. President, why is it that for ten days we have been
conducting our business under a fiction, under a false pre-
tense — the pretense that we are in the day of January 15 ?
Why, sir, it is in order that we may have from eleven o'clock
in the morning until six or seven o'clock in the evening, dur-
ing which no business can be transacted, except the making of
speeches on this bill; that is, eight hours of continuous speak-
ing on this bill with no other business. This fiction of a
continuous legislative day cuts out the morning hour; it cuts
out the order of business under which petitions and memorials
may be presented, under which bills may be introduced,
under which reports of committees may be submitted; all
business of the Senate is pushed aside by this fiction in
order that the opponents of this bill may be turned into the
Chamber under the necessity of speaking continuously eight
hours every day, and with the threat looming up before us of
night sessions also, and speaking to empty benches on the
other side.
Mr. President, this bill is being put through by the pressure
of physical weakness. It is being put through by means of
making it as exhausting as possible for the opponents of the
bill to discuss it.
Sir, there are two objects of discussion in a representative
body. One is to convince one's colleagues, to produce an
effect upon the minds of one's colleagues. That is the de-
liberation, the consideration of the representative body.
That, sir, does not exist in regard to this bill. No one can
deny it. There have been discussions behind closed doors,
we are told by the newspapers. There have been discussions
/
348
INTERNATIONAL SUBJECTS
in the Democratic caucus, amendments offered and adopted,
amendments offered and rejected behind closed doors, but no
discussion of this great measure in this representative body.
I am not one, sir, who flouts at caucuses. I think there
may well come a time in the course of the progress of legisla-
tion when a party shall undertake to act as a unit; but, sir, it
ought to be after discussion, and not before discussion or as a
substitute for discussion. You are substituting secret dis-
cussion in your caucus to the exclusion of that discussion and
consideration of this great measure which the Constitution,
the spirit of our free American Government, demands.
There is another object of discussion, sir, and that is an
object which reminds me of the old phrase, so familiar to
some of us, “ leading in prayer.” When we properly discuss
a measure of public importance we not only address our-
selves to each other, but we are leading, stimulating, inciting
the thought and discussion of the people of the whole coun-
try; and that, sir, is after all the great, the all-important, the
indispensable function of a public legislative body. Once we
begin in the Senate to discuss a new measure, as little atten-
tion as may seem to be paid to specific utterances, some get
into the press; in all the great newspaper offices there are
men whose business it is to read the Record; public discus-
sion begins; pertinent conversation among citizens begins;
in all the places where American voters meet they begin to
discuss, and gradually, through the press and through letters,
telegrams, and conversations comes back to the body a sense
of public judgment.
Mr. President, when has there been proposed to the Ameri-
can Congress a measure which required that kind of discus-
sion more plainly than this novel and important measure ?
Yet it is denied by the continued pressure of a fictitious
legislative day, and long hours, and abstention from discus-
sion upon the side of the majority, pressing on the progress
THE SHIP PURCHASE BILL
349
of this measure for the purpose of putting it through by brute
force and weight of votes before the people of the United
States can think about it and discuss it and express their
opinion upon it.
Mr. President, the fact that this measure cannot have that
kind of discussion and be passed at this short session con-
sistently with doing the primary work of the session upon the
appropriation bills shows that it ought not to pass at this
short session. You can pass it, my friends upon the Demo-
cratic side of this Chamber. You can pass the bill. . You
have it in your power. The Senator from Missouri was right
when he said: “We have the votes, and will pass it." You
can do it because upon this side of the Chamber are men who
have grown old in the public service, and whose physical
strength makes it impossible for them to do what their sense
of duty would dictate. You can pass it, but you do it at the
fearful risk of denying to the people of the United States that
consideration and discussion and formation and expression of
judgment to which they are entitled.
Mr. President, important as this bill is, I am not sure that
the subject I am now discussing is not still more important.
The modification of constitutional government by practice is
a gradual but resistless process. We are all familiar with the
change in our constitutional system which practice has made
in regard to the election of a President. The electoral college
no longer is at liberty to speak its own mind or to act upon
the dictates of its own judgment. Gradual progress has
nullified the constitutional provision, and has created a new
system. That process has taken place in many a land.
When Louis XIV declared himself to be the State, it had
become the sole function of the Parliament of Paris to register
- not to discuss, but to register his decrees. I have seen
national legislative bodies which have reached that point. I
have seen them, have been present in them, when no voice
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INTERNATIONAL SUBJECTS
was clear enough, no courage high enough, to break away
from the custom which accepted and registered the directions
of the chief executive. It was the result of a gradual process.
Let us not be too confident that we are proof against such a
process. We abandon today the performance of our func-
tion of so discussing this measure among ourselves that there
shall be real deliberation, real consideration, real forming of
opinion here, of discussing it so that the people of the coun-
try shall follow us in discussing it, in forming and expressing
their opinion, and we have taken one step further than ever
before in the process which will make us a registering body
rather than a legislative body.
I do not mean that it will come tomorrow. I do not mean
that other bills may not come, on which there will be dis-
cussion; but I mean that we are taking a step in a process
which is fraught with danger and with fatal results to repre-
sentative government. We can justify our existence as a
body only by the performance of our duty.
Oh, sir, the liberties of a free people depend upon the
courage and persistency of a minority. They depend upon
independence of thought and action on the part of all the
members of a legislative body. If we are merely to register,
if we are to refrain from discussion, if we are to smother our
judgment, we are contributing our part toward a process
more fatal to our country than any legislation we can devise,
more injurious than any benefit we can render will compen-
sate for.
Now, Mr. President, let me turn my attention to the bill
itself, and what it does.
It is an emergency measure. It puts in the hands of
three members of the Cabinet practically $40,000,000, with
power to increase the amount for the purpose of entering
into the business of ocean transportation on the part of the
Government of the United States.
THE SHIP PURCHASE BILL
351
I looked to see what may have prompted the sponsors of
the bill, and I find that in the testimony of the protagonist in
its behalf, the Secretary of the Treasury, Mr. McAdoo, the
emergency character of the bill is clearly and forcibly stated.
I read from his testimony taken on September 1, 1914, before
the House committee, the hearing of the Committee on
Merchant Marine and Fisheries on House Bill 18518. He
says:
-A great many of our commodities and our products are dependent and
have been dependent for outlet upon some of the foreign bottoms which
are now idle, and that, in turn, has, of course, had an injurious reflex action
upon our commerce. The immediate problem confronting us is to provide
additional facilities for carrying American products in the foreign trade;
and in order to do that, we must depend upon either private capital to
make these investments in ships to be sailed under our flag or else the
Government will have, as an emergency measure, to come to the assistance
of the country.
He says also:
Of course this measure is designed to be an emergency measure. It
never was contemplated that this should be a permanent operation on the
part of the Government. Still I think the provision for the disposition of
these ships is ample in case the necessity for them shall have disappeared.
Therefore the bill was drawn with reference to the immediate emergency
that is to be met.
He says also:
You are facing a situation now where you cannot measure economy
against the interests of the American people, and you must assume also,
in the discussion of subsidy, which I am opposed to on principle anyway,
you must assume that companies are available to take advantage of any
subsidy that would be granted. They are not available, and there is
no telling how soon they could be organized. It is only by the Govern-
ment dealing with this question in double-fisted fashion that relief can be
given.
There was something said about South American trade,
but manifestly that is not an emergency and not any part of
the emergency, for every one agrees that there is more ship-
ping to transact the South American business than there is
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INTERNATIONAL SUBJECTS
business to be transacted for the present, and there is no
emergency there.
I said this puts a large amount of money in the hands
of these gentlemen. They are at liberty to subscribe for
$10,000,000 of stock. They are bound to subscribe for
fifty-one per cent of that. They are to offer the remainder
to public subscription; but it is agreed that the business is
to be conducted at a certain loss. The Secretary of the
Treasury stated that with great frankness in the hearing;
and therefore it is assumed by him and by other sponsors
of the measure that there will be practically no private sub-
scriptions for stock. It is quite evident that no one would
from ordinary and proper commercial motives, subscribe at
par for the minority stock of a corporation which is adver-
tised beforehand as a losing venture.
Therefore the Government will subscribe for all the stock
under the terms of the bill. They are authorized to sell
$30,000,000 of Panama bonds, making $40,000,000. They
are authorized to increase the stock indefinitely with the
approval of the President.
The newspapers say that in the Democratic caucus an
amendment has been adopted which will limit that increase
to $10,000,000 more, and I will without dwelling further upon
it assume that to be the limit, making $50,000,000. They are
to put $50,000,000 into a losing business, the loss upon which
will have to be made up from taxation.
Of course, this must be but an emergency measure. Of
course, it is only as an emergency measure that anyone would
propose to do such a thing at a time when we have had to
impose an extraordinary war-revenue tax upon the people of
the country because of a deficit in our revenue. Every man
who pays his part of that war-revenue tax will be contributing
to make up the loss upon the shipping business which is author-
ized by this bill, and of course it is an emergency measure.
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353
Mr. SIMMONS. Mr. President
The VICE-PRESIDENT. Does the Senator from New York
yield to the Senator from North Carolina ?
Mr. Root. Yes, I yield.
Mr. SIMMONS. · I assume that the Senator from New York
does not desire to misrepresent the Secretary of the Treasury
with reference to the testimony given by him about the first
of September. I read that testimony very carefully last
night. I think the Senator is in error when he states that the
Secretary of the Treasury admitted that this whole business
would be operated at a loss. At one stage of his testimony
there was something said by the Secretary which might have
had that construction, but later the Secretary made the posi-
tive statement that while he was satisfied a part of the ships
would be operated at a loss, especially that part engaged
on the new routes for the purpose of building up new trade,
he was equally satisfied that other of these ships would be
operated at a profit; and there is nowhere, I think, in his
testimony anything that could be construed as a statement,
taken in connection with the qualifications, that there would
be a loss upon the entire operation.
Mr. Root. The Secretary of the Treasury says in his
testimony:
It is not only a question of establishing these routes, many of which will
undoubtedly have to be operated at a loss for a time in order to establish
the necessary trade relationships, but the Government will also have the
power to establish rates that will be advantageous to American commerce.
He says:
I think one of the essential.requisites is that the Government shall have
the power to establish these lines and see that they are operated in such a
way, even at a loss, as to benefit the commerce of this country.
There are other expressions at various points in his testi-
mony which leave no doubt whatever that that is his expec-
tation.
354
INTERNATIONAL SUBJECTS
We need not rely solely upon his expectations, for we know
that as a matter of fact private enterprise operating American
ships has been a losing enterprise. Upon good authority it is
stated that there are, or there were a few weeks ago, 2,000,000
tons of shipping engaged in the commerce of the world under
foreign flags and owned by American citizens. Why? Be-
cause the conditions of foreign commerce under the laws of
the United States are such as to make profit practically
impossible.
The Senator from Massachusetts [Mr. Lodge] has called my
attention to a clause in the President's message where he says:
It-
that is, the Government
It should take action to make it certain that transportation at rea-
sonable rates will be promptly provided, even where the carriage is not
at first profitable; and then, when the carriage has become sufficiently
profitable to attract and engage private capital, and engage it in abundance,
the Government ought to withdraw.
So the proposal is to go into a losing business, and to go
into a losing business at a time when we are making up a
deficit by an extraordinary war-revenue tax; and, of course,
I
say
it can be regarded only as an emergency measure.
Now, this bill authorizes the Secretary of the Treasury, the
Postmaster-General, and the Secretary of Commerce to buy
or build ships. How can the emergency be met ? Mani-
festly, not by building ships. The small fleet of ships which
could be procured by the use of this $50,000,000 would
require from a year to eighteen months, as I am advised,
to build. So that will not meet the emergency. The emer-
gency is the prevalence of high rates for the carriage of
American produce to Europe. There is no emergency
anywhere else.
It is true all the steamers in the world that are free are
coming in to get the benefit of those high rates, and the ordi-
THE SHIP PURCHASE BILL
355
生
​nary working of economic laws is sure to bring the rates
down. But for the moment there is the emergency, and but
one emergency, and that is high rates of carriage for Ameri-
can produce to Europe.
It is true our farmers are getting $1.40 for their wheat, so
that those high rates are paid not by us but by the purchasers
abroad. It is true the export of food-stuffs has been greater
within the last few months than ever before in our history.
Still, there is an emergency. It is true cotton is bringing
eight cents, and the interposition of Government which was
so strenuously demanded here a few months ago in order
to save the cotton producers, proved to be unnecessary. Still
the rates of transportation of cotton are high and there is an
emergency. But the emergency cannot be met by building
ships. We have got to buy them. Now, why ?
Mr. SIMMONS. Will the Senator from New York allow me
to ask him one more question and then I will not interrupt
him again?
Mr. Root. Certainly.
Mr. SIMMONS. The Senator says it is proposed that the
Government shall go into a losing business. Does the Sena-
tor see any particular difference between the Government
going into a losing business and the Government inviting
private citizens of this country to go into what is admitted to
be a losing business with a guarantee that by subsidies that
loss will be made up out of the Treasury of the United States?
Mr. Roor. Oh, Mr. President, I see many differences, but
I am not going to discuss them here today. I am speaking
upon an entirely different subject. I wish that I could de-
tach the mind of the Senator from North Carolina from cer-
tain preconceived ideas which evidently possess it, and get
him to attend to the subject that I am talking about.
Mr. SIMMONS. The Senator was just talking upon the
subject about which I asked the question.
356
INTERNATIONAL SUBJECTS
Mr. Root. I have been pressing upon the Senate the
emergency nature of this bill, and I had passed on to the
question as to how the emergency can be met. I was saying
you cannot meet it by building ships because you cannot get
them in time to meet the emergency. You have got to buy
them. Where are you going to buy them ? You meet no
emergency by buying ships that are already engaged in trans-
porting our products. You meet no emergency by buying free
ships.
A report of a committee of the Chamber of Commerce of
New York, presented to that body on the fourth of the present
month, makes an observation on that subject which is very
pertinent, and it is very good authority. This was a special
committee on the American merchant marine in foreign
trade, appointed by the chamber of commerce of the greatest
commercial city of the country. In their report, which I
shall hereafter have occasion to bring to the attention of the
Senate at large, they say:
Government ownership of ocean lines cannot bring to our aid a single
vessel except by building. Every steamship in the world is working today
except those interned in neutral ports. If these can be transferred to our
flag without international complications, there will be no difficulty in
financing the transfer of those suitable for freight carrying, for their
earnings will justify the purchase.
Now, that is high authority of men who know far more
than you and I know about the great complicated world-
wide business of ocean freight carriage.
There is left, then, to meet the emergency nothing but the
purchase of vessels which are prevented by the conditions of
war from engaging in the business of transportation now.
I therefore was not surprised in reading the testimony of the
Secretary of the Treasury to find that he plainly contem-
plated meeting this emergency by the purchase of vessels
which are, to use the common although not very correct ex-
THE SHIP PURCHASE BILL
357
pression, interned because of war risks; that is to say, the
vessels which are remaining in the ports where they were
found at the outbreak of the war, unable or unwilling to put
to sea for fear of capture; vessels belonging to one or another
of the belligerent powers.
The Senator from Massachusetts [Mr. Lodge] has called
attention to the testimony of the Secretary of the Treasury
upon this subject; there are but a few words of it, and I wish
to call your attention to it again as a part of what I have to
say. In this same hearing from which I have quoted this
occurred:
Mr. EDMONDS. Will they not be able to get plenty of bottoms when
they can make financial arrangements for payment for the cargo ?
Secretary McAdoo. I do not think so. An immense number of bot-
toms have been withdrawn from service.
Mr. EDMONDS. There are still quite a number of idle bottoms in New
York harbor today.
Secretary McADOO. The number of bottoms that are idle in New York
harbor are largely bottoms that cannot be put into service now.
Mr. SAUNDERS. How would this bill add to the number of available
bottoms when it proposes to make its purchases from existing bottoms ?
It will not add to the volume of bottoms.
Secretary McAdoo. There is a large number of idle bottoms. They
may be purchased.
Mr. SAUNDERS. Chiefly, are not those all German bottoms ?
Secretary McAdoo. More of those are idle at the moment than any
other.
Mr. SAUNDERS. It has been suggested that there would be grave
objection to our undertaking to purchase German bottoms.
Secretary McADOO. Why?
Mr. SAUNDERS. The newspapers make the statement that objection
has come from the nations concerned in this war.
Secretary McADOO. I shall not attempt to talk of diplomatic matters.
Mr. SAUNDERS. They say that would be equal to furnishing immediate
pecuniary aid - that is, to Germany. .
Secretary McADOO. That is a question altogether aside, I think, from
the issue. I believe that it cannot be successfully disputed by any individ-
ual or any nation that this Government or any Government has a right to
buy merchant ships, provided it buys them in good faith and for a neutral
purpose, and that is exactly what would be done in this case.
358
INTERNATIONAL SUBJECTS
The CHAIRMAN. If we should buy some French ships, too, that would
alter the situation. In other words, if they had some, as well as Germany,
that objection would not be urged ?
Mr. SAUNDERS. We would not buy any French ships, because they are
not to be bought.
Secretary McAdoo. I infer from what you tell me, or from what you
have read in the papers, that those ships, if purchased, would be purchased
from the German Government. I understand that those ships are simply
owned by German companies in which German citizens are stockholders.
It does not follow that the proceeds of a purchase from a private corpora-
tion of that country would be turned over to the Government.
It is quite plain that Secretary McAdoo took the same view
of the way in which it would be possible — the only way in
which it would be possible to utilize this legislation for the
purpose of meeting this emergency, that I take; that is, that
the only way is to purchase these idle bottoms, to purchase
these ships of belligerents which are unable to go to sea be-
cause, if they went to sea, they would be captured. It is
perfectly evident that that purchase was in the contempla-
tion of the officer who was to be the head of the shipping
board, and who came before the committee of the House to
explain the bill. He came, having in mind this bill as a
bill which would enable him and his associates, when passed
into a law, to buy those ships. In the report in the House
which followed this testimony, Report No. 1149, Sixty-
third Congress, second session, by Mr. Alexander, submitted
September 8, 1914, the committee say:
Fears are expressed that we will involve ourselves in complications with
Great Britain and France if we buy German ships. That may be. The
bill does not direct the shipping board to buy ships of the subjects of any
particular nation. They have the widest discretion in the purchase or
construction of vessels. We have no reason to believe they will act
otherwise than with the greatest care in whatever they may do.
It is perfectly plain that the committee of Congress which
reported the bill did it with the understanding that the bill
authorizes the Secretary of the Treasury, the Secretary of
THE SHIP PURCHASE BILL
359
Commerce, and the Postmaster-General to buy these ships,
and that they were contemplating the purchase of these ships
in a situation that cannot be met in any other way than by
the purchase of these ships.
The Secretary of the Treasury made a speech on this sub-
ject in Chicago. It is a speech, the central thought of which
is one of the most amazing ever proposed by a responsible
officer of the Government of the United States. While it is
apart from the line of my discussion, I cannot refrain from
quoting it. He said:
The objection that the shipping bill puts the Government in the ship-
ping business is not tenable. Those who urge it seem to forget that it is the
duty of the Government to engage in any activities, even of a business
nature, which are demanded in the interest of all the people of the country,
when it is impossible to engage private capital in such operations.
Do my friends think that that proposition does not need
discussion by the Congress of the United States and by the
people of the United States, before the man who holds that
view has unlimited millions put into his hands with which to
put the Government into business ?
I will return to the precise line of discussion; and that is
the contemplation and the purpose to meet this emergency
by the purchase of the belligerent ships that, unless we buy
them, cannot go to sea without being captured. In this
speech the Secretary further said:
Some timid people have argued that if the Government is interested as
a stockholder in a shipping company, and a ship of such company should be
seized by a belligerent and brought into a prize court, the sovereignty of the
Government would be involved. There is no ground whatever for this
view. If the Government operated ships outright, just as it operates the
vessels of our navy, an awkward situation of this character might arise;
but where a nation is merely a stockholder, or the sole stockholder, in a
private corporation, its sovereignty is not and cannot be directly involved
if the ships of such a corporation become the subjects of litigation in a prize
court concerning any issue which does not involve the Government itself.
The Government would stand in relation to such a corporation exactly
360
INTERNATIONAL SUBJECTS
as any individual stockholder does to a corporation in which he is inter-
ested. A suit against the corporation does not necessarily involve the
shareholders.
You perceive, sir, whenever this subject is suggested and
objection is made to the purchase of these ships, it is met by
an argument in favor of the purchase of the ships. This is the
last argument which has come to my notice from the Secre-
tary of the Treasury, having been delivered on the ninth of
this month, after the pending bill was laid before the Senate
an argument, a lawyer's argument, by the man who is to
be the head of the shipping board in favor of the power
to buy the ships.
The Secretary of Commerce has said in a speech which I
have not before me, delivered last Friday, I believe, at St.
Louis, that he contemplated the purchase of British ships.
Mr. President, there is no difference in principle, and before
I get through I think I shall show that there is no difference in
the obstacles in the way of purchasing ships of one belligerent
as compared with the ships of another belligerent.
I am not talking about this because the ships are Ger-
man; I am talking about it because they are belligerent
ships, and they are liable to be captured on the high seas as
belligerents; they are liable to be torpedoed by submarines
as belligerents; they are liable to be seized in foreign
ports as belligerents; and I am alarmed by the evidences
here that the proposed shipping board means to put the
Government of the United States in the position of giving
the protection of its flag to such ships when they sail out.
German, or British, or French, or Austrian, or Russian, or
what not, the objection is to the purchase of belligerent
ships, and, as I have said, that objection has been met by
the argument to which I have referred whenever it has been
proposed to the gentlemen whom we are about to endow
with these vast powers.
THE SHIP PURCHASE BILL
361
But there is another circumstance more potent in its effect
upon my mind than the manifest necessities of the emergency
which would require the purchase of belligerent ships, more
compelling in my mind than the expressions of the gentlemen
who are going to transact the business in favor of the right to
purchase belligerent ships, more compelling even than the
practical admission that that is what they have in mind, and
that is the filing of an opinion by the Solicitor of the State De-
partment in the Senateon the eleventh of August last. The bill
to create the shipping board and to endow it with the power
to build or buy ships had just been introduced in the House
when, on the eleventh of August, a paper was presented by the
Senator from New York [Mr. O'Gorman] to be printed, and
it was printed as Document No. 563, Sixty-third Congress,
second session. That paper contained an opinion by Mr.
Cone Johnson, Solicitor of the State Department. In support
of the right to buy these ships, he states these conclusions:
1. Merchant ships of a belligerent may be transferred to a neutral after
the outbreak of hostilities.
2. If the sale of the ship is made in good faith, without defeasance or
reservation of title or interest in the vendor, without any understanding,
expressed or tacit, that the vessel is to be retransferred after hostilities and
without the indicia or badges of a collusive or colorable transaction.
3. But transfer cannot be made of such vessel in a blockaded port or
while in transitu.
4. The transfer must be allowable under and in conformity to the
municipal regulations of the country of the neutral purchaser.
5. The declaration of the London convention that transfers of an
enemy vessel to a neutral during war will not be valid unless it be shown
that the same was not made to evade the consequences to which an enemy
vessel, as such, is exposed, if it were controlling of the question, relates
only to the good faith of the transfer and not to the ulterior motive of the
parties to reap the natural advantages to flow from the operation of the
vessel under the flag of a country not at war, while it inverts the burden of
proof of the good faith of the transaction.
That opinion was dated August 7, 1914. It was presented
in the Senate August 11, four days after, almost coinciden-
362
INTERNATIONAL SUBJECTS
tally with the introduction of the bill, and it must stand
before us as the opinion upon which this legislation finds its
claim of right.
Mr. Johnson is a lawyer of character and position, a lawyer
of ability, but he says in the conclusion at the close of the
opinion:
This memorandum is hurriedly struck off, and I have not had time or
opportunity to revise it; but it is believed that it correctly presents the
status of the question involved.
Why “hurriedly struck off" ? What exigency called for
haste in the consideration of this vastly important subject ?
The answer may be found by sending our minds back to the
fact that it was announced and publicly reported that it was
intended to put this shipping bill through then, last summer,
during the last session; and this hurried memorandum — a
lawyer's opinion that it is all right to buy these belligerent
ships — is the basis upon which the legislation proceeds.
Mr. SIMMONS. Mr. President, will not the Senator permit
me to interrupt him once more ?
The VICE-PRESIDENT. Does the Senator from New York
yield to the Senator from North Carolina ?
Mr. Root. Certainly.
Mr. SIMMONS. I wish to ask the Senator if, at the time that
opinion was presented to the Senate, the Senate was not en-
gaged in the consideration of the ship registry bill, and if it
was not with reference to the ship registry bill that that
opinion was expressed ?
Mr. Root. I do not know. I have not looked to see, and I
have not cared to see, what particular thing the Senate was
engaged in doing. What I do see is that in great haste, coin-
cidently with the beginning of this movement for the pur-
chase of ships, there is presented to us a lawyer's opinion, that
we have a right to buy these belligerent ships. Therefore,
Mr. President, I have come to the conclusion that the inter-
THE SHIP PURCHASE BILL
363
national situation is important, that it is serious, that it is our
duty to consider it, and that it is my duty to discuss it.
There are two reasons which press that duty upon me with
great weight. One is that I find, according to my own
opinion, which is fallible, upon which I do not place, I hope,
any greater weight than long experience of many errors leaves
in my mind, that in the haste which for some reason or other
was imposed upon him, the Solicitor of the State Depart-
ment has failed to consider fully the state of the law regard-
ing which he was writing, and has been led, through the
inadvertence of haste, to give radically and seriously incor-
rect advice upon this important subject.
The other consideration which makes me feel bound to ask
for the attention of the Senate to my own views of what is the
true state of the law, is the fact that it happened to be my
duty to give the instructions for the Government of the
United States to the delegates to the London conference, and
to direct their action during all the earlier part of the exist-
ence of that conference by daily cable communication, and
afterwards as a member of the Foreign Relations Committee
of the Senate, to discuss and vote favorably upon the report
of the conclusions of that conference, and afterwards, as a
member of the Senate, to vote to advise the President to ratify.
So, when I see that under the law which I am advised we
are about to pass it is the intention of the agents whom we
shall constitute, to buy these ships; when I see that that pur-
pose has been formed and is liable to be executed under what
I believe to be an erroneous opinion as to the state of the
law and the international situation which they will meet, I
feel bound to give the best I can in the way of expressing and
explaining my views of the true conditions of the law.
I am going now to say something which most of you know.
Some of you may not have given attention to it, however, and
therefore I will state the rudiments of the case.
364
INTERNATIONAL SUBJECTS
The London conference was a sequel of the second Hague
Conference of 1907. At this second Hague Conference, the
delegates of the United States, under the instructions of
their Government, pressed strongly for the creation of two
judicial tribunals which should pass upon international dis-
putes. One was an international prize court, made up by the
representatives of different nations, which should pass upon
questions of prize — just such questions as are arising now
so that instead of going to the courts of the captor country,
which apply the law of that country, with the disadvantages
that a claimant naturally has in going into the country of the
captor and arguing his case before a branch of the govern-
ment that has captured his ship, he would go to an impartial
tribunal, selected from the various countries of the world.
That court was created by a treaty called “the prize-court
treaty." The other court was a general judicial tribunal
which should pass upon all justiciable questions arising be-
tween nations, to be composed of judges who should devote
their entire time to it, and be paid adequate salaries, and be
a really judicial tribunal. That court never has been
constituted, although provision was made for it.
It was not constituted because there could not be an agree-
ment upon the manner of appointing the judges; but the
prize-court treaty was signed, and that has been ratified by
the United States. That is to say, the Senate has advised
and consented to its ratification. But when it came to the
ratification of that treaty by European powers, there arose
a question as to what law the court would apply, and it
seemed to many representatives of different European coun-
tries that there was a long list of disputed questions that a
prize court would have to pass upon, and that in order to
make the court effective, there must be some agreement
upon the law they were to apply - questions relating to
blockade, relating to contraband, relating to continuous
THE SHIP PURCHASE BILL
365
voyages, relating to the transformation of merchant ships
into warships, relating to the transfer of ships from a bellig-
erent to a neutral flag; and accordingly Great Britain called
a meeting of the representatives of the chief commercial
powers of the world, to be held in London in December, 1908.
That meeting was attended by the representatives of Great
Britain, France, the Netherlands, Germany, Austria, Italy,
Spain, Russia, Japan, and the United States. I think I have
enumerated them all. There were ten of them. They dis-
cussed these difficult questions. There was long discussion
upon the question which is raised by the proposal to buy
these belligerent ships — that is, the right of transfer of
a vessel from a belligerent flag to a neutral flag. The con-
clusions to which the conference came upon that subject
were stated in these words:
TRANSFER TO A NEUTRAL FLAG.
ARTICLE 55
The transfer of an enemy vessel to a neutral flag, effected before the
outbreak of hostilities, is valid, unless it is proved that such transfer was
made in order to evade the consequences to which an enemy vessel, as
such, is exposed.
Then follows a clause which is not pertinent here, and the
article proceeds:
Where the transfer was effected more than thirty days before the out-
break of hostilities, there is an absolute presumption that it is valid if it is
unconditional, complete, and in conformity with the laws of the countries
concerned, and if its effect is such that neither the control of, nor the profits
arising from the employment of, the vessel remain in the same hands as
before the transfer.
Then there is a clause not relevant here, and then follows:
ART. 56. The transfer of an enemy vessel to a neutral flag effected after
the outbreak of hostilities is void unless it is proved that such transfer was
not made in order to evade the consequences to which an enemy vessel, as
such, is exposed.
Then follow some clauses not relevant here.
You have there, sir, three situations stated:
366
INTERNATIONAL SUBJECTS
First. If the transfer is effected before the beginning of
hostilities it is valid unless it is proved that the transfer was
made in order to evade the consequences to which the enemy
vessel, as such, is exposed.
Second. If the transfer was effected more than thirty days
before the opening of hostilities, there is an absolute pre-
sumption that it is valid, even though it was made in order to
evade the consequences to which an enemy vessel, as such, is
exposed, provided it is unconditional, complete, and there is
no interest reserved. Of course, the declaration that a trans-
fer more than thirty days before the outbreak of hostilities is
valid if it is unconditional, complete, and in conformity with
the laws of the countries concerned, neither the control of
nor the profits arising from the employment of the vessel re-
maining in the same hands as before the transfer, carries by
necessary implication the declaration that a transfer made
less than thirty days before the opening of hostilities is not
valid, although all those conditions exist, provided it was
made to evade the consequences to which an enemy vessel,
as such, is exposed.
The third situation, is a transfer after the outbreak of hos-
tilities, where the transfer is void, unless it is proved that it
was not to evade the consequences to which an enemy vessel,
as such, is exposed.
It is the opinion of the Solicitor, who has given that opinion
to the State Department, as it has been communicated to us,
that these provisions of the Declaration of London do not in-
volve any question as to the motive with which the transfer is
made; that when the declaration says the transfer shall be
valid before hostilities unless it is proved that it was made in
order to evade, and that it shall be invalid after hostilities
unless it is proved that it was not made in order to evade, it
involves no question of motive. Prima facie, one would say
that that is all motive; that there is nothing but motive in
>
THE SHIP PURCHASE BILL
367
that provision. A thing done in order to evade is done with
the motive of evading. There would seem to be nothing but
motive in this; but the Solicitor does not think so, and he has
advised to the contrary.
Now, sir, the question may arise, and naturally would
arise, Why should we discuss the Declaration of London ?
Why should the Solicitor have given an opinion upon the
Declaration of London ? It has not been ratified. The
Senate has advised and consented to its ratification, but
before the documents of ratification were ever deposited the
war came, and it never has been ratified. The reason why
the Declaration of London is subject to consideration al-
though we are not bound by it, is that England and France
and Russia have adopted it with some modifications not
touching this subject, as their law for the present conflict.
Let me repeat, for the purpose of making myself clear, we
are not bound by the Declaration of London because it has
not been ratified; that is, we are not bound by it as a conven-
tion, as an agreement, whatever effect the steps which led to
it may have upon the propriety or wisdom of our conduct.
The convention which embodied that agreement has not be-
come a binding convention among the nations of the earth.
It receives its importance because England and France and
Russia have, by express provision, made it the law of those
respective countries, and Germany, in an order to which I
shall call your attention later, has in substance done the same
thing. Her law for this war in somewhat different phrase,
but with the same effect, is made to conform to the terms of
the Declaration of London which I have read.
It may be fortunate for us, fortunate for all who wish to
secure freedom of trade, that this is so, because when the
conference of London met in December, 1908, there was no
rule of international law regarding the transfer of a vessel
from a belligerent to a neutral flag. International law
368
INTERNATIONAL SUBJECTS
requires the general acceptance of nations, and there had
been no general acceptance of any rule by the nations of
the earth.
The first thing that was done in the conference was to call
for a statement from the different countries regarding their
position upon the various disputed points that the conference
sought to settle, and I call your attention now to the rules
which were stated by the principal countries concerned in the
present war.
I read from the proceedings of the International Naval
Conference held in London, December, 1908, to February,
1909, printed by the British Government and called “Mis-
cellaneous No. 5, 1909."
I will say that this report of the proceedings has never been
translated from the original French, it is not open to access
generally, and I think it must have been that the Solicitor,
in the haste of preparing his opinion, has failed to observe the
contents of this report, which gives the proceedings, the dis-
cussion, and conclusions reached from time to time by the
conference. I am sure that if he had read this attentively he
would have come to a different conclusion.
I call your attention now to the rules of national law stated
by these different nations at the opening of the conference, for
that is the background to which we have to go.
France. The change of nationality of ships of commerce effectuated
after the declaration of war is null and of no effect.
Russia. The belligerents have the right not to recognize the neutral
character of every ship of commerce purchased by neutral citizens from an
enemy's state or one of its nationals, unless the new proprietor proves that
the acquisition had become definitive before he had knowledge of the
commencement of the war.
Germany. The neutral or enemy character of a ship of commerce is
determined by the flag that it carries. A ship flying a neutral flag will
nevertheless be treated as an enemy ship if up to the opening of hostilities
or within the two weeks which have preceded, it has carried the enemy
flag.
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There are France, Germany, and Russia. Great Britain
and the United States presented an entirely different rule,
the rule of complete transfer and good faith. The Solicitor
for the State Department has substantially stated what the
American rule has been and what the British rule has been,
subject to some modifications which it perhaps was not
necessary that he should state.
In the conference these two different views confronted each
other, the view of France and Russia and Germany that a
transfer after the opening of hostilities was void and the view
of Great Britain and the United States that a transfer, made
complete and in good faith, would be recognized.
Mr. President, there being no rule of international law,
each country applies its own law in such cases. Indeed, when
a capture is made it is always made under the law of the
captor. That is our law. Our Supreme Court has decided
it. It is the municipal law of the captor that is in force when
the capture is made.
The courts of England and America have said that the law
of nations is a part of the law of the country, and we enforce
the law of nations. But here there was no law of nations be-
cause no rule had ever been accepted. So as the law stood
when this conference opened, if there had been a transfer of
a merchant ship from the flag of a belligerent to the flag of a
neutral any time after the opening of hostilities, the armed
ships of France, of Germany, and Russia would have ignored
the transfer and treated the vessel as an enemy vessel, not-
withstanding the transfer.
Mr. President, that was the law of France when her navy
rendered us a service more memorable than any other that
one nation ever rendered to another, and held the mouth of
the Chesapeake and made the surrender at Yorktown pos-
sible. That was the law of France then and for all the cen-
tury and more that has passed. That was the law of Russia
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INTERNATIONAL SUBJECTS
on that never-to-be-forgotten day when her fleet sailed into
the harbor of New York during the Civil War. That was the
law of Germany, whose ships are lying unable to proceed to
sea in the harbors of New York, Boston, Philadelphia, and
other ports. There was no escape from the capture of any
vessel from one of these belligerents by the cruisers of an-
other belligerent which might chance to meet her, notwith-
standing the transfer to the American flag, except to compel
these great nations to abandon the law they have held for
generations.
Mr. WILLIAMS. I should like to ask the Senator from New
York a question, if he will yield for that purpose.
Mr. Root. Certainly.
Mr. WILLIAMS. Notwithstanding the fact that this was
the law of Russia and of France, and it has been the law of
those two nations for a long time, have they not agreed
during the present war to adopt the Declaration of London
as their law ?
Mr. Root. Mr. President, I have already stated that.
Mr. WILLIAMS. Then if that be true
Mr. Root. I beg the Senator not to draw me on by lead-
ing me into a discussion of questions, however interesting
they are, which arise in his mind, because if I do what I think
I ought I have got to go through a rather complicated sub-
ject. As I have already said, the significance of the Declara-
tion of London is that these countries who started with these
perfectly strict and unyielding rules have adopted the
Declaration of London as their rule for this war.
Mr. WILLIAMS. And have modified their old position to
that extent.
Mr. Root. They have modified their old position to that
extent. So, although the Declaration of London is not bind-
ing upon us as a convention, although it was never ratified,
if we undertake to protect our flag upon a ship purchased
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371
from a belligerent we are driven to the Declaration of London
as the basis on which we must proceed. The old law was
much more strict and unyielding than the Declaration is, and
that is why the Solicitor of the State Department was quite
right in giving his opinion regarding the meaning of this pro-
vision of the Declaration of London, and that is why I am
going on to discuss that meaning. I have taken so much time
because I have frequently observed the statement about the
Declaration of London, that it is not binding; that it was not
ratified. If we could not have recourse to that Declaration
of London, these old rules are the only thing we would meet.
We have then reached this position, that these belligerent
powers England, France, Russia, and Germany will
enforce the provision of the Declaration of London, and if we
object to their enforcing that we come against still worse
rules for neutral trade, that is, the old rules which three of
them stated at the beginning of the conference. So their
adoption of the Declaration of London is an advantage to us
of which we must avail ourselves so far as practicable.
When the different countries had stated their position re-
garding the transfer of the flag, there was a statement pre-
pared for the use of the conference which undertook to
formulate certain propositions for discussion, basing those
propositions upon the varied statements of rules by the
different countries, and the basis which was formulated for
discussion regarding the transfer of the flag I will now read.
This is basis 35:
A ship cannot be transferred to a neutral flag in order to escape the
consequences which its quality as an enemy ship draws upon
it.
36. The transfer effected before the opening of hostilities is valid if it
has come about regularly. That is to say if it involves nothing fictitious or
irregular which renders it suspicious.
37. After the opening of hostilities there is an absolute presumption of
knowledge of the transfer which is effected while the ship is in the course
of a voyage.
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INTERNATIONAL SUBJECTS
Upon that they proceed to a discussion. After the discus-
sion proceeded for a considerable
made by the representatives of Germany and Great Britain.
Mr. Kriege, the very able and experienced adviser of the Ger-
man Foreign Office, who was the representative of that
country at this conference, said:
We are in accord with the authors of the summary upon the principle
that a ship cannot be transferred to a neutral flag with a view to escape the
consequences which its quality as an enemy ship draws on it, but in the
point of view of existing rights and for considerations of practical order we
wish to see adopted the system of our memorandum which would have the
double advantage of facilitating the task of commanders of cruisers and of
avoiding consequences to neutral commerce.
Mr. Crowe, one of the English delegates, explained the
principle that was intended to be expressed in basis 35
that is to say, “ that a commercial man subject of a belliger-
ent state ought not to escape the consequences of war while
transferring his ships under a neutral flag, but the application
of this principle it is difficult to find among the memoranda
by a rule precise and generally recognized.”
There you see that the German and the English representa-
tives were drawing together upon the rule which looked not
so much to what we would call good faith, as to the purpose
for which the transfer was made.
A short time after, Mr. Kriege, the German representative,
stated with great lucidity the actual point of difference which
had been reached by the conference. I read from page 183 of
this publication of the proceedings:
Mr. Kriege exposed the manner in which, according to him, this ques-
tion ought to be treated in the basis of discussion. This exposé, with the
motives which have inspired it, is found treated in Annex 73.
A formal paper which he presented. I call your especial
attention to it because it was a formal paper and has a very
important bearing upon determining the meaning of this
declaration. In this paper he says:
:
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373
I desire to call the attention of the commission to a divergence which
appears to exist between the proposition of the United States of America
on the one part, and, upon the other part, the propositions of Great
Britain and Germany.
Remember that our representatives and the British repre-
sentatives had presented a rule which called for good faith in
the transfer, and now he says:
This is a question of the meaning of the term "good faith." The
propositions are, all three, in accord to prescribe that the transfers made
during a war or immediately before a war are to be made in good faith.
Only it seems that, in the idea of the delegation of the United States of
America, the good faith would exist if the agreement relative to the trans-
fer was genuine and definitive and involved nothing fictitious or irregular.
On the other hand the German and Britannic propositions understand by
good faith the absence among the motives of the transfer of the intention
to withdraw the ship from the effect of the right of capture.
You perceive this is precisely what Mr. Johnson in his
opinion says does not exist in the declaration. Let me read
it again:
On the other hand the German and British propositions understand by
good faith the absence among the motives of transfer of the intention to
withdraw the ship from the effect of the right of capture.
In the sense of these propositions as according to the original text of
basis 35 the transfer would be null and without effect from the moment
when it should have been induced by the desire of the vendor to put him-
self under protection from the loss which the confiscation of the ship would
inflict upon him. The transfer would be, on the contrary, recognized as
valid when there was ground to believe that it would have been effected
also if the war had not arisen or had not been imminent at the moment of
the conclusion of the contract.
After that presentation of the precise point in difference
which had been reached between the delegates of the United
States on the one hand and the delegates of these other
powers, including England and Germany, on the other hand,
the subject was submitted to a drafting committee to en-
deavor to formulate a rule which would be satisfactory, and
I now wish to call your attention to the report of that
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INTERNATIONAL SUBJECTS
committee. I will say, in order to indicate the materiality of
the report, that it contains the rule which now appears in
the declaration. It was presented in the ninth session of the
commission -- that is, with the conference sitting as in
committee of the whole — on February 6, 1909. I read the
record of proceedings:
The delegation of the United States of America made a reserve on the
subject of the first article of the rule-
which was reported upon the transfer of a flag, and the com-
mittee of the whole, the commission, adopted the report with
the understanding that the part to which the American dele-
gates objected, upon which they made their reserve, was to
be reconsidered, and not deemed as adopted. That reserve
of the American delegates appears on page 290 of these
proceedings. By reference to it, we find that it related not at
all to the transfer of the flag after the opening of hostilities,
but related solely to the transfer of the flag before the opening
of hostilities. They say:
The American delegation regrets to find itself obliged to make a reserve
upon the first article of the regulation relative to the transfer of flag. It
considers that a rule which says, The transfer to a neutral flag of an
enemy ship before the opening of hostilities is valid, unless it shall be estab-
lished that the transfer has been effected with a view to escape the con-
sequences which the enemy character of the ship draws upon it,” is not in
accord with the spirit of modern rules adopted at The Hague concerning
war, which have for their end to guarantee the security of international
commerce against the surprises of war and wishing, conformably to
modern practice, to protect as much as possible the operations engaged
in in good faith and in course of execution before the beginning of
hostilities.
The report was reconsidered upon that reserve. You per-
ceive the American delegates accepted the rule which related
to transfers after the beginning of hostilities, but objected to
the rule relating to transfers before. A compromise was
made. Under that compromise a new provision making a
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375
distinction between transfers thirty days before and less than
thirty days before the opening of hostilities, was made.
Upon that our delegates agreed; that is to say, they got a
rule which made all transfers more than thirty days before
the war valid, if they were real; they got a rule which made
all transfers at any time valid if they were not made with the
motive of avoiding the risk of war. Before thirty days they
were valid even though they were made with that motive;
after thirty days they were valid unless they had that motive.
On that they agreed.
When the drafting committee came to make its report to
the committee of the whole, there was a full discussion of the
question which Mr. Kriege had brought up by his very lucid
statement of the different views as to what constituted good
faith. That report leaves no doubt as to the meaning of this
regulation, and no doubt whatever that the advice which
has been given to the State Department and communicated
to us as a basis for this legislation, is erroneous. The report
says — I read from pages 326 and 327 of the proceedings
of the conference, translating, I hope, with substantial
correctness.
The report has just stated the rules as I have read them,
the rules as they were finally adopted. The report says of
those rules:
The validity of the transfer is at the beginning subordinated to the
accomplishment of certain judicial conditions, having for their object to
show that the proprietor has been divested in a definitive manner and
without reserve of his title to the ship over which he should preserve no
control. If these conditions have not been fulfilled, for example, if the
effect of the transfer has been subordinated to the eventualities of the war,
the transfer is presumed to have taken place with the intention of shun-
ning the consequences of the war, and it is declared null.
This is simple.
Behold the difficult point. All the juridical conditions have been
fulfilled; but the captor is able to establish that the transfer, regular in
substance and in form, has been effected with a view to escaping the con-
.
376
INTERNATIONAL SUBJECTS
sequences which the enemy character entails. Will he be permitted to
make this proof in order to arrive at the result of declaring the transfer
void, or will the intention of avoiding the consequences of the war result
only from the failure to accomplish the juridical conditions ? It has
appeared doubtful to some. It has been recalled that the condition of good
faith was exacted in a distinct manner, independently of juridical condi-
tions, and that so, even if these conditions were fulfilled, one could prove
that the sale had been made in bad faith; but how is this to be understood ?
It is a delicate point. The captor evidently will not view“ good faith ”in
the same manner as the vendor. The vendor will consider that he acts
honestly if he divests himself regularly and definitively of his ships, be-
cause he does not wish to run the risk of losing them by the exercise of the
right of prize. The captor will think that there has not been good faith in
wishing to escape from the consequences of war. If one considers the
simple juridical interpretation, it seems, indeed, that a prize court, in the
presence of the proposition reported above, would hold the transfer valid
because the juridical conditions had been fulfilled, and would not place
itself in the point of view of the captor in order to consider if there had
been good or bad faith.
The majority of the committee did not accept this result, and accord-
ingly, desiring an unequivocal formula, the following has been adopted:
The transfer to the neutral flag of an enemy ship effected before the
opening of the hostilities is valid, unless it should be established that the
transfer has been effected with a view to escape the consequences which
the enemy character entails.
There, Mr. President, is a statement as plain as words can
make it, that the terms which are used in the rule embraced
in the declaration were substituted for the words “good
faith " that our delegates were pressing for, in order that the
intention to escape the consequences of the right of capture
should be a separate and substantive ground for invalidating
the transfer. There is no escape from that. There is no man
here who could state with greater certainty and lucidity the
purpose of the rule than it is stated in this report by Mr.
Renault, the greatest of living teachers of international law,
and the official adviser of the French foreign office.
That report of the drafting committee was adopted by the
committee of the whole; it was made by the committee of
the whole to the conference in plenary session, and it was
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377
adopted by the conference. If the conference could have
heard read the advice given to our State Department and
laid before the Senate as the basis of this legislation, it could
not have controverted the conclusion of that advice in more
positive and more unambiguous terms. I can find no words
in which to show that the Solicitor for the State Department
was wrong in his advice so clear as the words of Mr. Renault
in this report.
Mr. SUTHERLAND. Mr. President, will the Senator permit
me to ask him a question ?
The PRESIDING OFFICER. Does the Senator from New
York yield to the Senator from Utah ?
Mr. Root. Certainly.
Mr. SUTHERLAND. I understand the Senator from New
York to have shown that in addition to there having been
payment in consideration and bona fides, in the usual mean-
ing of that term, it must also appear that the ship was not
transferred in order that the capture of it might be avoided.
If it should turn out that the vendor transferred it with that
desire; that is, that he transferred it in order that it might
not be captured, and the vendee did not participate in that
intention, would that be sufficient to meet the requirements of
the rule, or does it require that there should be a participation
on the part of both the vendor and the vendee in the desire to
avoid capture ?
Mr. Root. Clearly, Mr. President, the motive is a motive
which is ascribed to the vendor. It is he who is seeking to
take his ship out of the danger of capture; it is he who will
substitute the valuable consideration that is necessary in
place of the vessel that he cannot use except at the risk of
capture. The vendee prior to the transaction has no motive
whatever in regard to the ship. It is the owner of the ship
who escapes from the effect that the enemy character of the
ship brings upon it.
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INTERNATIONAL SUBJECTS
Mr. WALSH. Mr. President
The PRESIDING OFFICER. Does the Senator from New
York yield to the Senator from Montana ?
Mr. Root. Certainly.
Mr. WALSH. The distinguished Senator has been giving us
the propositions upon this important question submitted by
the representatives of the various nations in response to the
suggestion of the British Government. As I recall, a state-
ment came from France as well as from Germany. Will the
Senator kindly advise us whether the American delegates
stated for the benefit of the conference, in response to the
invitation, the position of our Government ?
Mr. Root. Mr. President, the American delegates did
not upon this point present any memorandum as to the
position of the United States at the outset, but shortly after
the discussion began they did present a statement of their
views.
Mr. WALSH. They were called upon to make a formal
statement of the position taken by their Government, to-
gether with the authorities which they desired to submit in
support of the view taken. Will the Senator, who then was
Secretary of State, advise us as to why our delegates did not
comply with that request ?
Mr. Root. Because the delegates of the United States pre-
sented, as the basis of their position upon the whole range of
questions, the naval war code and discussions of the Naval
War College, and it was deemed wiser, as those discussions
covered the entire range, not to attempt to commit them to
any more definite and precise statement.
Mr. WALSH. Are we to understand the Senator, then, that
they did not make a definite statement on any of the seven
propositions submitted by the Government of Great Britain ?
Mr. Root. I do not remember about the others; I have
not examined the facts as to them.
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379
Mr. WALSH. Very well. Will the Senator have the kind-
ness to advise us in that connection if the delegates from
Austria-Hungary made a statement as to the position of their
Government, and, if it is brief, will he give it to us ?
Mr. Root. They made a statement, and the representa-
tives of various other countries made statements. The dele-
gates of Austria-Hungary made a statement which was much
nearer in its view to the position of Great Britain and the
United States than it was to the position of France and
Russia.
Mr. WALSH. My recollection is that the delegates from
Austria-Hungary made a statement to the effect that the
French doctrine was entirely obsolete and had been dis-
regarded by France.
Mr. Root. They did not go so far as that. They said in
their statement that it was too strict, and that France had
modified it or varied from it in the war of 1870; but we can
hardly take the statement of Austria-Hungary regarding the
position of France as against the formal official statement of
France herself.
Now, I want to give credence to what I have said about
what happened in this conference, by reading from a dis-
tinguished publicist, a professor in the University of Vienna,
Professor von Ferneck, who was one of the Austrian dele-
gates to the conference of London. I read from an article by
him in the Handbuch des Völkerrechts, for 1914. He says, in
chapter 5, under the heading “ Transfer of the Flag ”:
It may well be said that this subject, which is perhaps of much less
importance to neutrals than that of contraband or of blockade, was the
object of extraordinary attention on the part of the conference.
Omitting some irrelevant remarks, he proceeds:
For some time it seemed as though an unanimous solution of this ques-
tion could not be reached. The reason for this was that the interests in
the subject on the part of the powers represented at the conference were of
380
INTERNATIONAL SUBJECTS
a widely differing character, and that the laws and the customs of different
states are dissimilar in important respects. The United States of America,
France, Italy, the Netherlands, and Russia recognize without exception
the transfer of enemy merchant ships to a neutral flag when the transfer is
completed before the outbreak of the war; Germany, France, and Russia
declare without exception as null and void any transfer of flag made after
the outbreak of the war these are strict, uncompromising solutions that
may indeed be understood from a theoretical point of view, but in practice
lead to difficulties.
Several of the powers, among them Great Britain, the American Union,
and Germany insisted that in order to be valid in law, the transfer must
have been intended in “good faith,” and according to the American inter-
pretation “good faith meant not fictitious, while the other powers un-
derstood by good faith " that the owner himself must not have intended
to make it impossible for the opponent to seize the ship.
You will perceive that this statement answers the question
put by the Senator from Utah [Mr. Sutherland), and it states
in few words just what Mr. Renault's report says.
The other powers
says Professor von Ferneck -
understood by “good faith” that the owner must not have intended to
make it impossible for the opponent to seize the ship.
And so, as Mr. Renault's report said, in order that they
might have an unequivocal expression, because there were
these two views of “ good faith,” they put in a rule which
states in so many words the second view, according to Pro-
fessor von Ferneck, that “ the owner must not have intended
to make it impossible for the opponent to seize the ship.'
He proceeds:
By a remarkable argument, the American delegation controverted the
idea that the shipowner could not protect himself against the prize law by
transferring his ship to a neutral flag.
At the second session of the commission, the delegates were evidently
eager to reach an agreement that would avoid the harshness of the con-
sequent enforcement of a principle: The transfer of the flag effected before
the outbreak of the war should be regarded as valid, the transfer after the
outbreak of the war as invalid; in both cases the presumption might be
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381
refuted by counter evidence. In the course of the third meeting of the
commission the question regarding the elaboration of “ special rules regard-
ing the transfer previous and the transfer subsequent to the opening of the
hostilities” was referred to the investigating committee. This committee
made its report at the ninth session of the commission. The rules which
this committee had elaborated met the idea of the agreement, but did not
meet with the full approval of the American delegation, for the reason that
they did not take into account the thought developed in the declaration
referred to above. In order to overcome this difficulty, the representatives
of Great Britain proposed at the eleventh session of the commission " in
the interest of neutral commerce to add the following: there shall
be absolute presumption of validity, if the transfer was effected more than
thirty days before the opening of the hostilities, provided it is in absolute
and complete conformity with the laws of the countries interested, and has
for its object that the control over the ship and over the earnings resulting
from its use does not remain in the same hands that exercised this control
before the transfer.” To this the American delegation agreed; it yielded
in principle, but obtained a practically important concession: The ques-
tion of "good faith " might be raised only with regard to such ships as
were transferred within the last thirty days before the outbreak of the war.
I find, Mr. President, that Italy upon two occasions since
the conference of London has applied the rule. In the Revue
Générale de Droit International Public, of September October,
1913, there is a report of the case of the sailing vessel Vasilios
and of the sailing vessel Aghios Georghios, Greek ships, or
ships flying the Greek flag, which had been Turkish vessels
at the opening of the war between Italy and Turkey, and had
been sold to a Greek citizen, admitted to Greek registry, and
were flying the Greek flag. The ships were seized, con-
demned, and sold. So that we may add Italy to the powers
which have adopted this rule of the Declaration of London.
Germany has put herself upon the same basis, in terms
which leave no possible doubt. I read from the Prize Ordi-
nance of September 30, 1909, published in the Law Gazette
of the Empire for 1914, No. 50:
I approve the accompanying prize ordinance, and direct that in the
enforcement of the prize law my fleet commanders shall, during the war,
proceed in accordance with the provisions of the prize ordinance. In so far
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INTERNATIONAL SUBJECTS
as it may be necessary to make exception thereto in special cases, you
shall
make proposition to that end to me. I empower you to give such inter-
pretation to this ordinance and to make such changes thereto as may be
necessary, provided they are not of fundamental importance.
(Signed) WILHELM.
In the absence of the Imperial Counselor.
(Countersigned) v. TIRPITZ.
Dated September 30, 1909. Promulgated at Berlin, August 3,
1914, the date of the beginning of the war.
The ordinance, section II, is as follows:
Enemy ships and their cargoes. - With the exceptions specified un-
der 6
which are not relevant here; they relate to cartel ships,
hospital ships, etc. —
With the exceptions specified under 6, enemy ships are subject to
capture.
Ships are adjudged enemy or neutral ships by the flag they are entitled
to carry.
The flag which a ship is entitled to carry is determined in accordance
with the flag law of almost all maritime states from an official document
that any merchant ship must have on board.
If the nationality of a ship cannot be readily established, and especially
if the document required in accordance with the flag law of the respective
state is not in evidence, then the ship shall be considered as an enemy ship.
Ships that after the outbreak of the hostilities have been transferred
from the enemy to the neutral flag are also to be considered as enemy
ships
(a) If the commander is not convinced that the transfer would have
followed, even if war had not broken out, as, for instance, by succession, or
by virtue of a construction contract.
(b), (c), and (d) pertain to matters which are not relevant.
That points to the German understanding of the rule; and
I will say that in the final report of the London conference,
which is printed in this document containing the solicitor's
opinion, an illustration is given of the meaning of the rule -
that is, for instance, “in case of inheritance."
Applying these illustrations, the rule becomes plain. The
ordinary trade in ships is not to be prevented. Trade in the
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383
ordinary course of business is not to be prevented. The ordi-
nary devolution of property is not to be interfered with. If
the owner of a ship belonging to a belligerent dies, the prop-
erty may devolve upon a neutral. The rule does not pre-
vent it, and the neutral flag will protect it. If you or I have
ordered a ship from a shipyard in Germany or Great Britain,
and the ship is constructed, and we take it, if the ship was
ordered before the war and the transfer was made after the
war, that transfer is manifestly in the ordinary course of busi-
ness, as the German rule says, under a construction contract.
But none of these great nations will permit a citizen of an
enemy to rob it of its prize by transferring to a neutral the
ships it is entitled to capture on the high seas.
Mr. President, we are not bound by that; but that is the
state of the law of England, France, Germany, Russia, Italy,
and I presume the allies of these countries, and that is what
we have to run up against if we buy these belligerent ships;
for of course no one will contend for a moment that the Ham-
burg-American Line or the North German Lloyd Line is sell-
ing its ships in the ordinary course of business, or for any
reason other than that they cannot go out on the ocean and
carry on their business; and no one would doubt it if we were
to buy a British ship and put it in the Bremen trade or the
Hamburg trade. There can be no purchase now of ships that
have been lying idle six months, under the conditions of this
war, that is not stamped with a purpose that invalidates the
transfer under the rule of the Declaration of London equally
with those old and more severe rules which were presented
at the beginning of the conference.
But, Mr. President, I have been considering this subject as
if an American citizen were to buy. I have said about that,
that we are not bound by the rules of these countries. We
are at liberty to say: "Our rule is different, and we insist
upon its being applied.” I have always believed in that rule,
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INTERNATIONAL SUBJECTS
sir. I believe in it now. I instructed our delegates to the
Second Hague Conference to urge upon the conference the
immunity of all private property at sea in time of war. Our
delegates fought loyally for the rule which our courts applied,
and which is in furtherance of that beneficent and liberal rule.
But there is the law of Europe, and against that we will come;
and I repeat, it is their law that will be enforced in the treat-
ment of this subject. We should be left to protest and at-
tempt to get them or some court of arbitration to abandon
their rule and adopt ours. How easy it would be, sir, for us
to bring that about through the voluntary action of any
country or the action of any court of arbitration, in view of
the fact that they have adopted the rule of the Declaration of
London to which our delegates finally agreed, to which our
Government agreed in sending it to the Senate for rati-
fication, and to which the Senate agreed by advising and
consenting to the ratification, I shall not discuss.
But, says the Secretary of the Treasury, the Government
of the United States could not be involved in any difficulty
if it were to buy these ships that is to say, if this proposed
corporation were to buy the ships:
Some timid people have argued that if the Government is interested as a
stockholder in a shipping company, and a ship of such company should be
seized by a belligerent and brought into a prize court, the sovereignty of
the Government would be involved. There is no ground whatever for this
view.
I am sorry to write myself down in the category of timid
people, but I must, for I do not agree with the Secretary of
the Treasury in the idea that there is no ground whatever for
this view; and I am filled with apprehension by the idea of
putting these vast powers into the hands of a man who thinks
there is no ground whatever for that view.
A question was put to the counselor of the State Depart-
ment, Mr. Lansing, before the Committee on Naval Affairs
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385
of the House. I read from the hearings on Senate Bill 5259
and H. R. 5980, dated August 20, 1914:
Mr. WILLIAMS. The first question that we want information on, as a
legal proposition, is the liability that would attach to this Government if
the Government itself was operating a line of steamships engaged in the
transportation of goods to South America and to European countries com-
pared with the liability of a steamship company or an individual engaged
in the same business. Can you give us some information along these lines ?
Mr. LANSING. I suppose you refer to neutrality and to the question of
contraband ?
Mr. WILLIAMS. Yes, sir.
Mr. LANSING. I think that the transportation of contraband to a bellig-
erent port in a public ship of the United States would go much further
than the mere matter of liability, and that it would be regarded as an
unneutral act.
Mr. WILLIAMS. That the United States transporting goods to English,
French, or German ports would be a violation of neutrality ?
Mr. LANSING. I think it might be so regarded.
That is what we have to deal with. That is what the Secre-
tary of the Treasury does deal with in the words I have read
from him. He says:
If the Government operated ships outright, just as it operates the vessels
of our navy, an awkward situation of this character might arise; but
where a nation is merely a stockholder, or the sole stockholder, in a private
corporation, its sovereignty is not and cannot be directly involved if the
ships of such a corporation become the subjects of litigation in a prize
court concerning any issue which does not involve the Government itself.
The Government would stand in relation to such a corporation exactly
as any individual stockholder does to a corporation in which he is
interested. A suit against the corporation does not necessarily involve
.the shareholders.
Mr. President, that is not the law as it has been understood
by the Government of the United States, or as it has been ap-
plied. In the Delagoa Bay case our Government went
straight through the legal fiction of a Portuguese corporation
and asserted and enforced the rights of American citizens who
were stockholders of that corporation, precisely as if they had
been the owners themselves. The British Government did
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INTERNATIONAL SUBJECTS
the same thing in the same case. Time and again the rule
which was established in that case has been applied to the
affairs of these legal fictions which give to the real owners of
property the municipal right of succession and limitation of
liability and the use of a corporate seal, etc. Of course, Mr.
President, it stands to reason that a municipal statute giving
to A and B and C rights to sue and be sued in corporate form
and to have limitation of liability and to act through a seal,
is no concern of another Government if A and B and C,
through that form, have injured or affected the rights of that
other Government. The idea is idle and baseless that the
Government of the United States, by the exercise of its vast
national power, can wrest enormous funds from its people by
taxation, can use those funds to withdraw from Germany's
right of capture British ships and from France's and Great
Britain's right of capture of German ships, and say: “I can-
not be called to account because I have made a statute under
which I protect myself by a legal fiction, calling myself a
trading corporation. Ah, no! the real and serious affairs
of this world are not conducted in that way. Whatever we
do through this corporation that we create and own, we do
as a government, and are responsible for as a government.
In the case of the Parlement Belge, which was referred to
the other day by the Senator from Massachusetts (Mr.
Lodge), the courts of England were called upon to consider
the effects of government ownership. The Government of
Belgium owned a boat plying across the Channel from Ostend
to some British port, much like our municipal ferries, and the
question was raised, whether being a trading boat engaged
solely in trading operations, it was to be treated as subject
to the laws relating to trading ships or was to have the im-
munities which pertained to government ships. The court
below held that it was subject to the laws relating to trading
ships. The court above reversed the decision, and held that,
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387
being the property of the Government of Belgium, it was
immune from the English laws relating to trading ships. The
reality of things, sir, prevents us from escaping by any, pos-
sibility from responsibility for the use of our national power
to withdraw any belligerent ships that we may now purchase
from the right of capture on the part of the other belliger-
ents, whether we proceed by the fiction of a corporation or
directly.
There is only one possible escape from the condemnation
and forfeiture of a prize court for every ship of this kind that
is purchased. That is the possible protection of the sov-
ereignty of the United States, preferring to occupy the
position of violating neutrality rather than to submit to
condemnation.
What is the meaning, sir, of the violation of neutrality ?
It means taking sides in the controversy. It means helping
one belligerent against another. It means that after all our
proclamations and our efforts, we abandon the attempt to be
neutral, and we take sides in the great conflict; and we can-
not stop. We cannot measure the number of steps. One un-
neutral act by us will lead to acts by others that will compel
further acts by us, more acts by others and more by us and
more by them, until we are in the thick of the controversy.
Remember, sir, the condition of the world today. I am
arguing against the Government of the United States buying,
not a ship, but an international quarrel with every ship.
Somebody said to me: “It is buying a claim, not a ship.”
No. It is buying a quarrel, not a ship; and I say, remember
the condition of the world. Recall to your minds all that you
have read during the past six months of the condition of feel-
ing on the part of the people in all these countries Eng-
land, Belgium, France, Germany, Russia, Servia, all of them
- tense to the highest degree, in that condition of exaltation
which holds prudence for naught.
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INTERNATIONAL SUBJECTS
Why, sir, we were ready to fight, from Mason and Dixon's
line to Canada, on the instant, when Mason and Slidell were
taken from the Trent, and Great Britain mobilized her fleet.
It was ruin for the North if we fought -- certain ruin. We
could not stand against the gallant South and against mighty
England. Our blockade would be gone; but we were ready
to fight, because every heart of the North was full of emotion,
and every nature was tense with feeling, and we cared naught
for prudence. That is Europe today.
If we are going to maintain our neutrality, we must hold
close to it, and keep out of all needless causes of controversy.
And let us remember ourselves. We have kept, hitherto, a
united America. We have stood behind the President in his
neutrality proclamations. Here and there fault has been
found on one side or the other, but we have stood by him;
but do not forget that there are here millions of Germans who
love their Fatherland, and I honor them for it. I should
think less of them if their natures were not awakened by the
peril and the stress of the land that gave birth to them and
their fathers. They are alive and tense. There are millions
of men of English blood, born and bred with a love for Anglo-
Saxon liberty and the laws that we inherited from England.
Do not imagine that they are not thinking and feeling, and
if you precipitate this country into a controversy where
Europe feels and acts upon the belief that we have taken
sides, we shall rend ourselves.
No; the only safe course is to keep out of unnecessary
controversial questions with as great care and conserva-
tism and caution as possible, for we never can tell where a
controversy will lead us.
Mr. President, I deeply regret that any shade of party poli-
tics has fallen upon the consideration of this measure. We
have in the Senate long felt that it was our duty to lay aside
party when we reach the water's edge. We have considered
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389
the terms of treaties and advised the President, of whatever
party, in accordance with the best of our judgment and our
conscience. When we have reached the water's edge we have
said we leave party.
This bill proposes a business which is all beyond the water's
edge - international in its aspect and in its purpose. It is
international at a time of intense emotion and certain con-
troversy. I wish we could have considered it - I wish we
could consider it now -- as Americans earnest for the peace
and prosperity of our country, forgetful of party.
Mr. President and Senators, there is no crime against our
country so wicked as the crime of conducting our interna-
tional relations with a view to party popularity. The two
considerations are incompatible, and cannot exist at the same
time in any mind. He who has charge of our foreign affairs
must deal with them regardless of the effect upon his political
future or his party's advantage, or he cannot deal with them
as the public safety demands. The man who is considering
his political future and his party's advantage should keep out
of foreign relations. The two cannot coexist.
One incident for which I impute blame to no one has
recently happened which illustrates what I say. The note
that was sent by our State Department to Great Britain a
short time ago regarding the search for contraband, en-
deavoring to remedy serious evils of delay and perhaps in-
difference in making the search for contraband, which is
admittedly the right of belligerents, was a moderate, a rea-
sonable, and a proper note. No one in the world had a right
to find fault with it. But before the note was delivered in
Great Britain and before it was made public here, the news-
papers were filled by somebody, I do not know whom, with
an account of it, far, far from the truth, with an account of it
which pictured the Administration as standing up against
frightful odds and dreadful danger for a view of American
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INTERNATIONAL SUBJECTS
rights which no serious student of international law ever
thought of asserting and which the note did not assert.
Both this country and England were filled with an erron-
eous view of that note and that erroneous view persists. It
could have been given for no other purpose than a political
purpose and it was a crime against the American people
and against the peace of the world to misrepresent it.
I will not proceed. I will not specify or illustrate further.
I will close what I have to say by expressing the most fervent
hope that we may deal both in this great deliberative body
and in the executive department of the Government with this
serious, grave question as lovers of our country, with all the
wisdom and experience and ability that we can bring to our
country's service.
THE OUTLOOK FOR INTERNATIONAL LAW
PRESIDENTIAL ADDRESS AT THE NINTH ANNUAL MEETING
OF THE AMERICAN SOCIETY OF INTERNATIONAL LAW
WASHINGTON, DECEMBER 28, 1915
THE
HE incidents of the great war now raging affect so
seriously the very foundations of international law that
there is for the moment but little satisfaction to the student
of that science in discussing specific rules. Whether or not
Sir Edward Carson went too far in his recent assertion that
the law of nations has been destroyed, it is manifest that the
structure has been rudely shaken. The barriers that states-
men and jurists have been constructing laboriously for three
centuries to limit and direct the conduct of nations toward
each other, in conformity to the standards of modern civili-
zation, have proved too weak to confine the tremendous
forces liberated by a conflict which involves almost the whole
military power of the world and in which the destinies of
nearly every civilized state outside the American continents
are directly at stake.
The war began by a denial on the part of a very great
power that treaties are obligatory when it is no longer for the
interest of either of the parties to observe them. The denial
was followed by action supported by approximately one
half the military power of Europe and is apparently approved
by a great number of learned students and teachers of inter-
national law, citizens of the countries supporting the view.
This position is not an application of the doctrine rebus sic
stantibus which justifies the termination of a treaty under
circumstances not contemplated when the treaty was made
so that it is no longer justly applicable to existing conditions.
It is that under the very circumstances contemplated by the
891
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INTERNATIONAL SUBJECTS
treaty and under the conditions for which the treaty was
intended to provide the treaty is not obligatory as against
the interest of the contracting party.
This situation naturally raises the question whether exec-
utory treaties will continue to be made if they are not to be
binding, and requires consideration of a system of law under
which no conventional obligations are recognized. The par-
ticular treaty which was thus set aside was declaratory of the
general rule of international law respecting the inviolability
of neutral territory; and the action which ignored the treaty
also avowedly violated the rule of law, and the defense is
that for such a violation of the law the present interest of a
overeign state is justification. It is plain that the applica-
tion of such a principle to a matter of major importance at
the beginning of a long conflict must inevitably be followed
by the setting aside of other rules as they are found to inter-
fere with interest or convenience; and that has been the case
during the present war. Many of the rules of law which the
world has regarded as most firmly established have been
completely and continuously disregarded, in the conduct of
war, in dealing with the property and lives of civilian non-
combatants on land and sea and in the treatment of neutrals.
Alleged violations by one belligerent have been asserted to
justify other violations by other belligerents. The art of
war has been developed through the invention of new instru-
ments of destruction and it is asserted that the changes of
conditions thus produced make the old rules obsolete.
It is not my purpose at this time to discuss the right or
wrong of these declarations and actions. Such a discussion
would be quite inadmissible on the part of the presiding officer
of this meeting. I am stating things which whether right or
wrong have unquestionably happened, as bearing upon the
branch of jurisprudence to which this Society is devoted. It
seems that if the violation of law justifies other violations,
OUTLOOK FOR INTERNATIONAL LAW
393
then the law is destroyed and there is no law; that if the dis-
covery of new ways of doing a thing prohibited justifies the
doing of it, then there is no law to prohibit. The basis of such
assertions really is the view that if a substantial belligerent in-
terest for the injury of the enemy come in conflict with a rule
of law, the rule must stand aside and the interest must prevail.
If that be so it is not difficult to reach the conclusion that for
the present at all events in all matters which affect the exist-
ing struggle, international law is greatly impaired. Nor can
we find much encouragement to believe in the binding force
of any rules upon nations which observe other rules only so
far as their interest at the time prompts them. Conditions
are always changing and a system of rules which ceases to
bind whenever conditions change should hardly be con-
sidered a system of law. It does not follow that nations can
no longer discuss questions of right in their diplomatic inter-
course, but upon such a basis it seems quite useless to appeal
to the authority of rules already agreed upon as just and
right and to their compelling effect because they have been
already agreed upon.
When we recall Mansfield's familiar description of inter-
national law as “ founded upon justice, equity, convenience,
the reason of the thing, and confirmed by long usage,
may well ask ourselves whether that general acceptance
which is necessary to the establishment of a rule of interna-
tional law may be withdrawn by one or several nations and
the rule be destroyed by that withdrawal so that the usage
ceases and the whole subject to which it relates goes back to
its original status as matter for new discussion as to what is
just, equitable, convenient and reasonable.
When this war is ended, as it must be some time, and the
foreign offices and judicial tribunals and publicists of the
world resume the peaceable discussion of international rights
and duties, they will certainly have to consider not merely
we
394
INTERNATIONAL SUBJECTS
what there is left of certain specific rules, but also the funda-
mental basis of obligation upon which all rules depend. The
civilized world will have to determine whether what we call
international law is to be continued as a mere code of eti-
quette or is to be a real body of laws imposing obligations
much more definite and inevitable than they have been
heretofore. It must be one thing or the other. Although
foreign offices can still discuss what is fair and just and what
is expedient and wise, they cannot appeal to law for the
decision of disputed questions unless the appeal rests upon
an obligation to obey the law. What course will the nations
follow ?
Vague and uncertain as the future must be, there is some
reason to think that after the terrible experience through
which civilization is passing, there will be a tendency to
strengthen rather than abandon the law of nations. What-
ever the result may be, the world will have received a dread-
ful lesson of the evils of war. The sacrifice of millions of lives,
millions homeless and in poverty, industry and commerce
destroyed, overwhelming national debts, - all will naturally
produce a strong desire to do something that will prevent
the same thing happening again.
While the war has exhibited the inadequacy of interna-
tional law, so far as it has yet developed, to curb those govern-
mental policies which aim to extend power at all costs, it has
shown even more clearly that little reliance can be placed
upon unrestrained human nature, subject to specific tempta-
tion, to commit forcible aggression in the pursuit of power
and wealth. It has shown that where questions of conduct
are to be determined under no constraint except the circum-
stances of the particular case, the acquired habits of civiliza-
tion are weak as against the powerful, innate tendencies
which survive from the countless centuries of man's struggle
for existence against brutes and savage foes. The only means
OUTLOOK FOR INTERNATIONAL LAW
395
yet discovered by man to limit those tendencies consist in
the establishment of law, the setting up of principles of
action and definite rules of conduct which cannot be vio-
lated by the individual without injury to himself. That
is the method by which the wrongs naturally flowing from
individual impulse within the state have been confined
to narrow limits. That analogy, difficult as it is to maintain
in view of the differences between the individual who is sub-
ject to sovereignty and the nation which is itself sovereign,
indicates the only method to which human experience points
to avoid repeating the present experience of these years of
war consistently with the independence of nations and the
liberty of individuals. The Pax Romana was effective only
because the world was subject to Rome. The Christian
Church has been urging peace and good-will among men for
nineteen centuries, and still there is this war. Concerts of
Europe and alliances and ententes and skillful balances of
power all lead ultimately to war. Conciliation, good-will,
love of peace, human sympathy, are ineffective without in-
stitutions through which they can act. Only the possibility
of establishing real restraint by law seems to remain to give
effect to the undoubted will of the vast majority of mankind.
In the effort to arrange the affairs of the world so that they
will not lead to another great catastrophe, men will therefore
turn naturally towards the re-establishment and strengthen-
ing of the law of nations. How can that be done? How can
the restraints of law be made more effective upon nations ?
It is not difficult to suggest some things which will tend
in that direction.
Laws to be obeyed must have sanctions behind them; that
is to say, violations of them must be followed by punishment.
That punishment must be caused by power superior to
the law-breaker; it cannot consist merely in the possibility
of being defeated in a conflict with an enemy; otherwise
396
INTERNATIONAL SUBJECTS
there would be no law as between the strong and the weak.
Many states have grown so great that there is no power
capable of imposing punishment upon them except the power
of collective civilization outside of the offending state. Any
exercise of that power must be based upon public opinion. It
cannot rest merely upon written agreements or upon the
accidental dictates of particular interests. It must proceed
from general, concurrent judgment and condemnation.
When that exists, punishment may be inflicted either by the
direct action of governments, forcible or otherwise, or by the
terrible consequences which come upon a nation that finds
itself without respect or honor in the world and deprived of
the confidence and good-will necessary to the maintenance of
intercourse. Without such an opinion behind it, no punish-
ment of any kind can be imposed for the violation of inter-
national law.
For the formation of such a general opinion, however,
questions of national conduct must be reduced to simple and
definite form. Occasionally there is an act the character of
which is so clear that mankind forms a judgment upon it
readily and promptly, but in most cases it is easy for the
wrongdoer to becloud the issue by assertion and argument
and to raise a complicated and obscure controversy which
confuses the judgment of the world. There is but one way
to make general judgment possible in such cases. That is by
bringing them to the decision of a competent court which
will strip away the irrelevant, reject the false, and declare
what the law requires or prohibits in the particular case.
Such a court of international justice with a general obligation
to submit all justiciable questions to its jurisdiction and to
abide by its judgment is a primary requisite to any real
restraint of law.
When we come to consider the working of an international
court, however, we are forced to realize that the law itself is
OUTLOOK FOR INTERNATIONAL LAW
397
1
in many respects imperfect and uncertain. There is no legis-
lature to make laws for nations. There is no body of judicial
decisions having the effect of precedent to declare what inter-
national laws are. The process of making international law
by usage and general acceptance has been necessarily so
slow that it has not kept pace with the multiplying questions
arising in the increasing intercourse of nations. In many
fields of most fruitful controversy different nations hold
tenaciously to different rules, as, for recent example, upon
the right of expatriation, upon the doctrine of continuous
voyages, upon the right to transfer merchant vessels after
the outbreak of a war. Yet any attempt to maintain a court
of international justice must fail unless there are laws for the
court to administer. Without them the so-called court would
be merely a group of men seeking to impose their personal
opinions upon the states coming before them. The lack of an
adequate system of law to be applied has been the chief ob-
stacle to the development of a system of judicial settlement of
international disputes. This is well illustrated by the history
of the convention for an international prize court adopted by
the Second Hague Conference. The Conference agreed to es-
tablish such a court and provided in article seven of the treaty
that in the absence of special treaty provisions governing the
case presented “the Court shall apply the rules of inter-
national law. If no generally recognized rule exists, the Court
shall give judgment in accordance with the general principles
of justice and equity.” When the question of ratifying this
treaty was presented to the Powers whose delegates had
signed it, some of them awoke to the fact that upon many sub-
jects most certain to call for the action of a court there was
no general agreement as to what the rules of international
law were, and that different nations had different ideas as to
what justice and equity would require, and that each judge
would naturally follow the views of his own country. Ac-
398
INTERNATIONAL SUBJECTS
cordingly the Conference of London was called, and met in
December, 1908. In that Conference the delegates of the
principal maritime powers came to agreement upon a series
of questions and they embodied their agreement in the
seventy-one articles of the Declaration of London. If that
Declaration had been ratified by all the Powers in the Con-
ference, it would doubtless have been accepted as a statement
of the international law upon the subjects covered. But it
was not ratified, and so the Prize Court treaty remains inef-
fective because the necessary basis for the action of the Court
is wanting. It is plain that in order to have real courts by
which the legal rights of nations can be determined and the
conduct of nations can be subjected to definite tests, there
must be a settlement by agreement of old disputes as to what
the law ought to be and provision for extending the law over
fields which it does not now cover. One thing especially
should be done in this direction. Law cannot control na-
tional policy, and it is through the working of long-continued
and persistent national policies that the present war has
come. Against such policies all attempts at conciliation and
good understanding and good-will among the nations of
Europe have been powerless. But law, if enforced, can con-
trol the external steps by which a nation seeks to follow a
policy, and rules may be so framed that a policy of aggression
cannot be worked out except through open violations of law
which will meet the protest and condemnation of the world
at large, backed by whatever means shall have been devised
for law enforcement.
There is another weakness of international law as a binding
force which it appears to me can be avoided only by a radical
change in the attitude of nations towards violations of the
law.
We are all familiar with the distinction in the municipal
law of all civilized countries, between private and public
OUTLOOK FOR INTERNATIONAL LAW
399
rights and the remedies for the protection or enforcement of
them. Ordinary injuries and breaches of contract are re-
dressed only at the instance of the injured person, and other
persons are not deemed entitled to interfere. It is no concern
of theirs. On the other hand, certain flagrant wrongs the
prevalence of which would threaten the order and security of
the community are deemed to be everybody's business. If,
for example, a man be robbed or assaulted, the injury is
deemed not to be done to him alone, but to every member of
the state by the breaking of the law against robbery or
against violence. Every citizen is deemed to be injured by
the breach of the law because the law is his protection, and
if the law be violated with impunity, his protection will dis-
appear. Accordingly, the government, which represents all
its citizens, undertakes to punish such action even though
the particular person against whom the injury was done may
be content to go without redress. Up to this time breaches
of international law have been treated as we treat wrongs
under civil procedure, as if they concerned nobody except
the particular nation upon which the injury was inflicted
and the nation inflicting it. There has been no general recog-
nition of the right of other nations to object. There has
been much international discussion of what the rules of law
ought to be and the importance of observing them in the
abstract, and there have been frequent interferences by third
parties as a matter of policy upon the ground that specific,
consequential injury to them might result from the breach;
but, in general, states not directly affected by the particular
injury complained of have not been deemed to have any
right to be heard about it. It is only as disinterested media-
tors in the quarrels of others or as rendering good offices to
others that they have been accustomed to speak of it at all.
Until the First Hague Conference that form of interference
was upon sufferance. In the Convention for the Pacific
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INTERNATIONAL SUBJECTS
Settlement of International Disputes, concluded at that Con-
ference, it was agreed that in case of serious trouble or conflict,
before an appeal to arms the signatory powers should have
recourse to the good offices or mediation of foreign powers,
and article three also provided: “Independent of this re-
course, the signatory powers recommend that one or more
powers, strangers to the dispute, should on their own initiative
and as far as circumstances may allow, offer their good offices
or mediation to the states at variance. Powers strangers to
the dispute have a right to offer good offices or mediation
even during the course of hostilities. The exercise of this
right can never be regarded by one or other of the parties in
conflict as an unfriendly act.” These provisions are a con-
siderable step towards a change in the theory of the relation
of third powers to an international controversy. They
recognize such an independent interest in the prevention
of conflict to be the basis of a right of initiative of other
powers in an effort to bring about a settlement. It still
remains under these provisions, however, that the other
powers assert no substantive right of their own. They are
simply authorized to propose an interference in the quarrels
of others to which they are deemed to be strangers. The
enforcement of the rules of international law is thus left to
the private initiative of the country appealing to those rules
for protection, and the rest of the world has in theory and in
practice no concern with the enforcement or non-enforcement
of the rules.
If the law of nations is to be binding, if the decisions of
tribunals charged with the application of that law to inter-
national controversies are to be respected, there must be a
change in theory, and violations of the law of such a character
as to threaten the peace and order of the community of na-
tions must be deemed to be a violation of the right of every
civilized nation to have the law maintained and a legal
OUTLOOK FOR INTERNATIONAL LAW
401
injury to every nation. When a controversy arises between
two nations, other nations are indeed strangers to the dis-
pute as to what the law requires in that controversy, but
they cannot really be strangers to a dispute as to whether
the law which is applicable to the circumstances shall be
observed or violated. Next to the preservation of national
character, the most valuable possession of all peaceable
nations, great and small, is the protection of those laws which
constrain other nations to conduct based upon principles of
justice and humanity. Without that protection, there is no
safety for the small state, except in the shifting currents of
policy among its great neighbors, and none for a great state,
however peaceable and just may be its disposition, except in
readiness for war. International laws violated with im-
punity must soon cease to exist, and every state has a direct
interest in preventing those violations which, if permitted to
continue, would destroy the law. Wherever in the world the
laws which should protect the independence of nations, the
inviolability of their territory, the lives and property of their
citizens, are violated, all other nations have a right to protest
against the breaking down of the law. Such a protest would
not be an interference in the quarrels of others. It would be
an assertion of the protesting nation's own right against the
injury done to it by the destruction of the law upon which it
relies for its peace and security. What would follow such a
protest must in each case depend upon the protesting na-
tion's own judgment as to policy, upon the feeling of its
people and the wisdom of its governing body. Whatever it
does, if it does anything, will be done not as a stranger to a
dispute or as an intermediary in the affairs of others, but in
its own right for the protection of its own interest. Upon no
other theory than this can the decisions of any court for the
application of the law of nations be respected, or any league
or concert or agreement among nations for the enforcement
402
INTERNATIONAL SUBJECTS
of peace by arms or otherwise be established, or any general
opinion of mankind for the maintenance of law be effective.
Can any of these things be done? Can the law be strength-
ened and made effective ? Imperfect and conflicting as is
the information upon which conjecture must be based, I
think there is ground for hope that from the horrors of vio-
lated law a stronger law may come. It was during the appal-
ling crimes of the Thirty Years War that Grotius wrote his
De Jure Belli ac Pacis and the science of international law
first took form and authority. The moral standards of the
Thirty Years War have returned again to Europe with the
same dreadful and intolerable consequences. We may hope
that there will be again a great new departure to escape
destruction by subjecting the nations to the rule of law. The
development and extension of international law has been
obstructed by a multitude of jealousies and supposed inter-
ests of nations each refusing to consent to any rule unless it
be made most favorable to itself in all possible future con-
tingencies. The desire to have a law has not been strong
enough to overcome the determination of each nation to
have the law suited to its own special circumstances; but
when this war is over the desire to have some law in order to
prevent so far as possible a recurrence of the same dreadful
experience may sweep away all these reluctances and schemes
for advantage and lead to agreement where agreement has
never yet been possible. It often happens that small dif-
ferences and petty controversies are swept away by a great
disaster, deep feeling, and a sense of common danger. If
this be so we can have an adequate law and a real court
which will apply its principles to serious as well as petty
controversies, and a real public opinion of the world respond-
ing to the duty of preserving the law inviolate. If there be
such an opinion it will be enforced. I shall not now inquire
into the specific means of enforcement, but the means can
OUTLOOK FOR INTERNATIONAL LAW
403
be found. It is only when opinion is uncertain and divided,
or when it is sluggish and indifferent and acts too late, that it
fails of effect. During all the desperate struggles and emer-
gencies of the great war, the conflicting nations from the
beginning have been competing for the favorable judgment
of the rest of the world with a solicitude which shows what
a mighty power even now that opinion is.
Nor can we doubt that this will be a different world when
peace comes. Universal mourning for the untimely dead,
suffering and sacrifice, the triumph of patriotism over selfish-
ness, the long dominance of deep and serious feeling, the
purifying influences of self-devotion, will surely have changed
the hearts of the nations, and much that is wise and noble
and for the good of humanity may be possible, that never was
possible before.
Some of us believe that the hope of the world's
the world's progress
lies in the spread and perfection of democratic self-govern-
ment. It may be that out of the rack and welter of the great
conflict may arise a general consciousness that it is the people
who are to be considered, their rights and liberties to govern
and be governed for themselves rather than rulers' ambitions
and policies of aggrandizement. If that be so, our hopes will
be realized, for autocracy can protect itself by arbitrary
power, but the people can protect themselves only by the
rule of law.
J
SHOULD INTERNATIONAL LAW BE
CODIFIED?1
ADDRESS AT A SESSION OF SECTION SIX OF THE SECOND PAN-
AMERICAN SCIENTIFIC CONGRESS MEETING JOINTLY WITH
THE AMERICAN INSTITUTE OF INTERNATIONAL LAW AND THE
AMERICAN SOCIETY OF INTERNATIONAL LAW, WASHINGTON,
DECEMBER 30, 1915
The Second Pan-American Scientific Congress met in the city of Washington,
December 27, 1915, and adjourned January 8, 1916. As stated by the preamble to
the Final Act of this Congress, it was held " for the purpose of bringing into close
and intimate contact the leaders of scientific thought and of public opinion in the
American Republics, to the end that by an exchange of views results might be
reached of service to the peoples of the American continent, and that by personal
intercourse foundations would be laid for friendly and harmonious coöperation in
the future.”
An elaborate program was prepared by the Executive Committee of the United
States dealing with the various phases of science, arranged in nine sections, the
Sixth Section being devoted to International Law, Public Law, and Jurisprudence.
I
SHALL not at this hour detain you by any extended
remarks, and I should apologize for having no prepared
address. The subject is one which is very interesting to me
and must be very interesting, I think, to every one who
thinks about international affairs or who thinks about the
possibilities of the future of his country. Should interna-
tional law be codified ? and, if so, should it be done through
governmental agencies or by private scientific societies? If
that means should we undertake to put the law of nations into
a single body which shall be the rule and guide for interna-
tional relations, I think we must answer “ No, that it is im-
possible at the present time.” Mr. Field made a valiant
1 The reader desiring fully to grasp Mr. Root's views on this subject, should see
also his presidential address at the fifth annual meeting of the American Society of
International Law, April 27, 1911, on The Function of Private Codification in
International Law," on page 57 of this volume.
405
406
INTERNATIONAL SUBJECTS
attempt, and Bluntschli a great effort, but the formation of
international law, still in its infancy, is a process only just
begun, and it has not reached a point where the rules can be
embodied in a code. On the other hand, codification, con-
sidered not as a result but as a process, seems to me plainly
should be attempted and pressed forward and urged with all
possible force.
It is curious that codification should be especially necessary
in a system of law which is based upon custom more exclu-
sively even than municipal law; but that is necessarily so in
the case of the law of nations, because there are no legisla-
tures to make the law and there are no judicial decisions to
establish by precedent what the law is. One great weakness
of international law has been that to ascertain what it was
you have to go to text writers, and to a great variety of state-
ments, differing, inconsistent, many of them obscure and
vague, capable of different interpretations, so that the instant
the occasion for the application of a law arises, there is
pressed upon the conflicting or disputing nations the question
as to what the law is, without any clear and definite standard
from which to ascertain it.
Recent events, or rather the realization of the truth which
comes from a great war in Europe, compels us to consider the
great shortcomings of what we think of as international law,
to consider how narrow the field which it covers, how vague
and uncertain it is within that field, and how difficult it is to
compel in any way a recognition of its rules of right conduct.
There is but one way in which that weakness of international
law can be cured, and that is by the process of codification, a
process which must extend through long periods, which has
been going on very gradually for many years. The Declara-
tion of Paris was a little bit of codification. The three rules
of the Treaty of Washington constituted a little bit of codi-
fication as between the United States and Great Britain, and
CODIFICATION OF INTERNATIONAL LAW
407
they have been in substance accepted and adopted by the
nations of Europe at The Hague. The Geneva Convention
covered a certain field by codification, and the Hague Con-
ventions a much wider field. So I say, considered as a con-
clusion, there can be no codification, but, considered as a
process, there must be codification, codification pressed
forward and urged on by all possible means.
The very fact that there are no courts to establish prece-
dents and no legislatures to make laws makes this necessary.
All international law is made, not by any kind of legislation,
but by agreement. The agreement is based upon customs,
but the ascertainment and recognition of the customs is the
subject of the agreement; and how can agreement be pos-
sible unless the subject matter of the agreement is definite
and certain ?
I say that recent events indicate that we must press for-
ward codification. I can go a step further than that. The
changes in the conditions of the earth, the changes in inter-
national relations which have been so rapid in recent years,
have outstripped the growth of international law. I think it
quite right to say that the law of nations does not come so
near to covering the field of national conduct today as it did
fifty years ago. The development of international relations
in all their variety, in the multitude of questions that arise,
goes on more rapidly than the development of international
law; and if you wait for customs without any effort to trans-
late the custom into definite statements from year to year,
you will never get any law settled except by bitter contro-
versy. The pressing forward of the codification of interna-
tional law is made necessary by the swift moving of events
among nations. We cannot wait for custom to lag behind the
action to which the law should be applied.
Mr. Chairman, I want to express entire harmony with
what Governor Baldwin said a few moments ago upon the
408
INTERNATIONAL SUBJECTS
other branch of this question, as to whether codification
should be by governmental agencies or by private societies.
It is not practicable that governments should do the thresh-
ing out of questions necessary to reach a definite statement of
a conclusion. That has to be done with freedom from con-
straint by the private individual doing his work in a learned
society or in private intercourse. I think it is not generally
understood that the first conference at The Hague would
have been a complete failure if it had not been for the accom-
plished work of the Institut de Droit International. The first
conference was called by the Czar of Russia to consider and
agree upon disarmament. It was called with expressions of
the most noble character which, if they could have impressed
themselves upon the minds and hearts of Europe, would have
rendered impossible the terrible sacrifices that are now going
on. The conference was called for the purpose of agreeing
upon disarmament, and for the purpose of averting what the
Czar saw coming in the future and which has now come. But
there were Powers in Europe which would not have it. They
refused to enter a conference for the purpose of considering
that subject. Something had to be done. Here was a confer-
ence called by this great Power about to meet, and something
had to be done, so they took the accomplished work of the
Institut de Droit International, which had been threshed out
through the labors and discussions of the most learned inter-
national lawyers of Europe, including most of the technical
advisers of the foreign offices of Europe meeting in their
private capacity, and embodied it in the conventions of the
First Hague Conference. It would have been impossible for
the Hague Conference to do that work or one tithe of it if
they had not had the material already provided.
So I think it is quite clear that the process of codification,
step by step, subject by subject, point by point, must begin
with the intellectual labor of private individuals, and it must
CODIFICATION OF INTERNATIONAL LAW 409
be completed by the acceptance of governments. All of the
hundreds of thousands of pages that have been written upon.
international law by the private individuals go for nothing
unless governments accept them. A wilderness of text-
writers one has to wander through in endeavoring to get at
what the law of nations is, and all that they wrote is of no
consequence, except as it exercises a force in bringing about
action and agreement by the governments of the earth. So,
Mr. Chairman, this process must have both private initiative
and governmental sanction.
Mr. Chairman, there is one other subject which I think we
should consider in dealing with the subject of codification,
and that is this: Are the small nations of the earth to con-
tinue ? Is it to be any longer possible for the little people to
maintain their independence ? That is a serious question
with many of us in this joint meeting of the Society and Sub-
section Six of the Pan-American Congress and the American
Institute. The large nations can take care of themselves by
the exercise of power, if they are willing to be armed to the
teeth always; but the small countries — what are they to
do ? There is no protection for them but the protection of
law! And there is no protection in law unless the law be
made clear and definite and certain, so that a great bully
cannot escape it without running into the condemnation of
that law. So I say that every dictate of humanity should
lead us to urge forward that process by which in its better
moments mankind may be led to agree to the setting up of
clear and definite and distinct rules of right conduct for the
control of the great nations in their dealings with the small
and weak.
The presence here of Dr. Maurtua, whom it is a great pleas-
ure for me to hail as a colleague in the Faculty of Political
and Administrative Science of the University of San Marcos,
at Lima, and of the distinguished Ambassador from Brazil,
410
INTERNATIONAL SUBJECTS
my old friend from Rio de Janeiro, lead me to say something
which follows naturally from my reflections regarding the
interests of the smaller nations. It is now nearly ten years
ago when your people, gentlemen, and the other peoples of
South America, were good enough to give serious and respect-
ful consideration to a message that it was my fortune to take
from this great and powerful republic of North America to
the other American nations. I wish to say to you, gentlemen,
and to all my Latin American friends here in this congress,
that everything that I said in behalf of the Government of the
United States at Rio de Janeiro in 1906 is as true now as it
was true then. There has been no departure from the stand-
ard of feeling and of policy which was declared then in behalf
of the American people. On the contrary, there is through-
out the people of this country a fuller realization of the duty
and the morality and the high policy of that standard.
Of course, in every country there are individuals who de-
part from the general opinion and general conviction, both in
their views and in their conduct; but the great, the over-
whelming body of the American people love liberty, not in
the restricted sense of desiring it for themselves alone, but in
the broader sense of desiring it for all mankind. The great
body of the people of these United States love justice, not
merely as they demand it for themselves, but in being willing
to render it to others. We believe in the independence and
the dignity of nations. and while we are great, we estimate
our greatness as one of the least of our possessions, and we
hold the smallest state, be it upon an island of the Caribbean
or anywhere in Central or South America, as our equal in
dignity, in the right to respect and in the right to the treat-
ment of an equal. We believe that nobility of spirit, that
high ideals, that capacity for sacrifice are nobler than ma-
terial wealth. We know that these can be found in the little
state as well as in the big one. In our respect for you who are
CODIFICATION OF INTERNATIONAL LAW
411
small, and for you who are great, there can be no element of
condescension or patronage, for that would do violence to our
own conception of the dignity of independent sovereignty.
We desire no benefits which are not the benefits rendered by
honorable equals to each other. We seek no control that we
are unwilling to concede to others, and so long as the spirit of
American freedom shall continue, it will range us side by side
with you, great and small, in the maintenance of the rights of
nations, the rights which exist as against us and as against all
the rest of the world.
With that spirit we hail your presence here to coöperate
with those of us who are interested in international law; we
hail the formation of the new American Institute of Inter-
national Law and the personal friendships that are being
formed day by day between the men of the North and the
men of the South, all to the end that we may unite in such
clear and definite declaration of the principles of right con-
duct among nations, and in such steadfast and honorable
support of those principles as shall command the respect of
mankind and insure their enforcement.
THE DECLARATION OF THE RIGHTS AND
DUTIES OF NATIONS OF THE AMERICAN
INSTITUTE OF INTERNATIONAL LAW
PRESIDENTIAL ADDRESS AT THE TENTH ANNUAL MEETING OF
THE AMERICAN SOCIETY OF INTERNATIONAL LAW
WASHINGTON, APRIL 27, 1916
The American Institute of International Law, consisting of five representatives
from each national society of international law in each of the twenty-one American
republics, was founded on October 12, 1912, and held its first session in connection
with and under the auspices of the Second Pan-American Scientific Congress, at
Washington, December 28, 1915, to January 8, 1916. On January 6, 1916, the
American Institute of International Law, upon the motion of its president, James
Brown Scott, adopted a Declaration of the Rights and Duties of Nations, prefixed
by a preamble and followed by a commentary upon each article of the declaration.
This commentary was based in each instance upon a decision of the Supreme Court
of the United States.
WSTHE
this meeting we finish the first decade of this
Society. How great is the change of conditions in the
field of international law during that period! Ten years ago
all the governments of the world professed unqualified respect
and obedience to the law of nations, and a very small number
of persons not directly connected with government knew or
cared anything about it. In this country at least interna-
tional law was regarded as a rather antiquated branch of use-
less learning, diplomacy as a foolish mystery, and the foreign
service as a superfluous expense. Now that governments
have violated and flouted the law in many ways and with
appalling consequences, the people of this country at least
have begun to realize that observance of the law has a real
and practical relation to the peace and honor of their own
country and their own prosperity. They are beginning to
take an interest in the subject, to discuss it in the newspapers,
413
414
INTERNATIONAL SUBJECTS
to inquire how observance of the law may be enforced. There
appears a dawning consciousness that a democracy which
undertakes to control its own foreign relations ought to
know something about the subject. If we had not estab-
lished this Society ten years ago to study and discuss and
spread a knowledge of international law it would surely be
demanded now, and we may be certain that our annual
public discussions and the publication of the admirable
Journal which we have always maintained, with its definite
and certain information upon international events, its inter-
esting and well-informed discussion of international topics,
and its supplements, with their wealth of authentic copies of
international documents, havecontributed materially towards
fitting the people of our country to deal with the international
situations which are before them.
Following our example, all the American countries have
established similar societies, so that there are now twenty-
one such societies on the American continents. In most
cases these societies have been organized with the direct
approval and sympathy of the government of the country
and they include in their numbers a large part of the most
eminent leaders of opinion in all the American states. Still
another institution has been created in the American In-
stitute of International Law, composed of delegates selected,
to a limited number, by each of these national societies.
This Institution has been established not as a competitor of
the Institut de Droit International, which selects its members
from among all the civilized countries, and not with the idea
that there is such a thing as American international law to be
distinguished from general international law, but with the
idea that there may be special American views upon inter-
national questions; that the circumstances of the American
republics may make it desirable for them to insist upon and
press forward the development of particular principles in the
RIGHTS AND DUTIES OF NATIONS
415
law; that there are varieties of opinion upon such subjects
which it may be useful to subject to common discussion and
comparison of views; that the promotion of the habit of
thinking broadly and internationally and not narrowly or
locally, and a knowledge in each country of the points of view
and habits of thought of each other country, will make
all the American states more useful members of the family
of nations, more considerate, more tolerant of differences of
opinion, and more conscious of the international duties
which are correlative to international rights.
The American Institute of International Law held its first
meeting in Washington in December last, and, after a dis-
cussion in which representatives from all parts of the new
world engaged, it adopted as its point of departure for
future discussions a declaration of the rights and duties
of nations which I commend especially to your attention.
The declaration was in these words:
DECLARATION OF THE RIGHTS AND DUTIES OF NATIONS
I. Every nation has the right to exist, and to protect and to conserve
its existence; but this right neither implies the right nor justifies the act of
the state to protect itself or to conserve its existence by the commission
of unlawful acts against innocent and unoffending states.
II. Every nation has the right to independence in the sense that it has
a right to the pursuit of happiness and is free to develop itself without
interference or control from other states, provided that in so doing it does
not interfere with or violate the rights of other states.
III. Every nation is in law and before law the equal of every other
nation belonging to the society of nations, and all nations have the right
to claim and, according to the Declaration of Independence of the United
States, “ to assume, among the powers of the earth, the separate and equal
station to which the laws of nature and of nature's God entitle them.'
IV. Every nation has the right to territory within defined boundaries
and to exercise exclusive jurisdiction over its territory, and all persons
whether native or foreign found therein.
V. Every nation entitled to a right by the law of nations is entitled to
have that right respected and protected by all other nations, for right and
duty are correlative, and the right of one is the duty of all to observe.
416
INTERNATIONAL SUBJECTS
VI. International law is at one and the same time both national and
international: national in the sense that it is the law of the land and ap-
plicable as such to the decision of all questions involving its principles;
international in the sense that it is the law of the society of nations and
applicable as such to all questions between and among the members of the
society of nations involving its principles.
You will observe that this declaration states in the main
familiar principles. We have long been accustomed to such
statements in the text books. Indeed the official reporter of
the Institute, in his commentary upon the declaration, under-
takes to show and does show that every statement, far from
being novel, is based upon the decisions of American courts
and the authority of American publicists. Yet the declara-
tion was not superfluous or unimportant. There is a vast
difference between the occasional decisions of a national
court or the opinions of individual students, and a unani-
mous agreement of representatives of all the sovereign states
1 Mr. Root quotes only the text of the declaration, and the preamble prefixed to
it is here printed for the information of the reader who may desire to have the whole
document before him.
Whereas, the municipal law of civilized nations recognizes and protects the right
to life, the right to liberty, the right to the pursuit of happiness, as added by the Decla-
ration of Independence of the United States of America, the right to legal equality,
the right to property, and the right to the enjoyment of the aforesaid rights; and
Whereas, these fundamental rights, thus universally recognized, create a duty on
the part of the peoples of all nations to observe them; and
Whereas, acoording to the political philosophy of the Declaration of Indepen-
dence of the United States, and the universal practice of the American Republics,
nations or governments are regarded as created by the people, deriving their just
powers from the consent of the governed, and are instituted among men to promote
their safety and happiness and to secure to the people the enjoyment of their
fundamental rights; and
Whereas, the nation is a moral or juristic person, the creature of law, and sub-
ordinated to law as is the natural person in political society; and
Whereas, we deem that these fundamental rights can be stated in terms of inter-
national law and applied to the relations of the members of the society of nations,
one with another, just as they have been applied in the relations of the citizens or
subjects of the states forming the Society of Nations; and
Whereas, these fundamental rights of national jurisprudence, namely, the right
to life, the right to liberty, the right to the pursuit of happiness, the right to equality
before the law, the right to property, and the right to the observance thereof are,
RIGHTS AND DUTIES OF NATIONS
417
of the western hemisphere upon a statement in definite
terms of fundamental principles of international right. A
still more important reason for such a declaration lies in the
fact that the fundamental principles declared, now stand
denied or repudiated by the conduct of nations in the great
war that rages in the old world.
This instrument asserts the right of every nation to con-
tinued existence, to independence, to exclusive jurisdiction
over its own territory, and to equality with every other
nation; and it denies the right of any nation to commit for
its own protection or preservation, unlawful acts towards
innocent and unoffending states. These are the fundamen-
tals of international right. They involve the existence of a
democratic community of nations in which each individual
nation has the same rights and full liberty for their enjoy-
ment, limited and limited only, by the equal rights of every
other member of the community. The body of rules of
action which long experience and general consent have
worked out for the assertion and preservation of these rights
and the application of the universal limitation upon them in
the practical relations between nations constitutes interna-
tional law. This scheme of organization of the civilized
when stated in terms of international law, the right of the nation to exist and to
protect and to conserve its existence; the right of independence and the freedom to
develop itself without interference or control from other nations; the right of
equality in law and before law; the right to territory within defined boundaries and
to exclusive jurisdiction therein; and the right to the observance of these funda-
mental rights; and
Whereas, the rights and the duties of nations are, by virtue of membership in the
society thereof, to be exercised and performed in accordance with the exigencies of
their mutual interdependence expressed in the preamble to the Convention for the
Pacific Settlement of International Disputes of the First and Second Hague Peace
Conferences, recognizing the solidarity which unites the members of the society of
civilized nations;
Therefore, the American Institute of International Law, at its first session, held
in the city of Washington, in the United States of America, on the sixth day of
January, 1916, adopts the following six articles, together with the commentary
thereon, to be known as its Declaration of the Rights and Duties of Nations.
418
INTERNATIONAL SUBJECTS
inhabitants of the earth is sharply distinguished from con-
ditions of tribal hostility which prevailed during all the early
part of human history and in which each separate tribe main-
tained its independence and liberty as best it could by force
of arms in a normal relation of hostility to all other tribes;
and it is equally distinguished from the condition of subordi-
nation and suzerainty in which a single nation, acquiring a
preponderance of power, reduces other nations to submis-
sion and imposes upon them friendly relations with each
other as equal vassals of the superior state. A familiar
example of the one extreme is to be found in Europe during
the Middle Ages and of the other in the Roman Empire, and
upon a smaller scale and for a brief period in the control of
Napoleon over a large part of Continental Europe. One
condition affords independence to strong, civil societies at
the expense of progress in civilization. The other condition
fosters the arts of peace at the cost of liberty. The demo-
cratic organization of a community of nations, on a basis of
acknowledged right, declared and protected by law, seeks to
avoid both of these extremes, and the vast progress of civili-
zation since the Peace of Westphalia, with the general
advance of mankind in comfort, intelligence, individual
freedom and opportunity, testify to the superior merit of
the arrangement. Yet just as ordinary democracies com-
posed of natural persons tend, unless continually restrained,
to lapse into anarchy on the one hand or to seek security
under autocracy on the other, this community of nations has
hitherto been in a condition of unstable equilibrium, always
in danger of being overturned in one direction or the other.
The age-long struggle to maintain the balance of power in
Europe, often misguided, as we can see in looking back,
often controlled by selfish purposes, often violating the very
rights it professed to preserve, has nevertheless been constant
effort to counteract these tendencies.
RIGHTS AND DUTIES OF NATIONS
419
A careful examination of the undisputed facts which show
the origin and conduct of the present war leaves no room for
doubt that the entire basis of the community organization
of nations upon which rests the structure of international law
is put at issue in the struggle. The principles of action upon
which the war was begun involve a repudiation of every
element of fundamental right upon which the law of nations
rests. The right of every nation to continued existence, to
independence, to exclusive jurisdiction over its own territory
and equality with other nations, is denied. The right of any
strong nation to destroy all those alleged rights of other
nations in pursuit of what it deems to be useful for its own
protection or preservation is asserted. Under this view what
we have been accustomed to call fundamental rights would
become mere privilege to be enjoyed upon sufferance accord-
ing to the views of expedience held by the most powerful.
If this view prevails the whole structure of modern inter-
national law will be without foundation, and the discussion
of its rules with the nations who maintain this view must now
be not a real appeal to any law, but merely a balancing of
possible injuries and benefits. So long as these fundamental
questions are unsettled all discussion of international law
must be hypothetical, as if architects were to discuss the
elevation of a building while the ground plan remains un-
determined. These propositions are the postulates of all
reasoning regarding the rules of international law. All dis-
cussion of international right is based upon them, assumes
assent to them. To discuss international law with a nation
which denies these postulates can be nothing but an unreal
and futile appearance of discussing the law. When your
major premise is disputed you must establish that before you
can go on with your argument.
There is only one real question of international law today,
and that is, whether these postulates of the law are to stand
420
INTERNATIONAL SUBJECTS
or not. As between nations which agree that they should
stand there may be discussion as to international rules based
upon that hypothesis, but as between nations which assert
and nations which repudiate these fundamentals of the law,
there can be no real discussion except of expediency. The
declaration of the American Institute of International Law
arrays the members of all these American countries upon one
side of this vital question of principle which is being fought
out in the great war. Their act is altogether impersonal. It
takes no account of responsibility or blame or racial feelings
or friendships or enmities, and it is unmistakable. The
representatives of all the American countries affirm the old
basis of international right upon which depends the life, the
independence and the legal equality of all small nations and
the laws which protect them against the arbitrary power of
the strong.
It will be useful to remember, however, that to be effective
such declarations must be accompanied by conformity in the
conduct of the nations adhering to the principles declared.
There are some rules of national conduct which flow directly
from the principles of national independence and equality,
but which do not always coincide with the impulses of senti-
ment or with the apparent requirements of immediate
interest. On the one hand these principles require that
nations shall refrain from interference with the internal
affairs of other nations. It frequently happens that many
persons, in the United States for example, strongly disap-
prove things that are done in other countries within the
jurisdiction and affecting the citizens of those other countries
and not affecting any country's international rights. Such
acts may run counter to our ideas of liberty, of morality, of
humanity, of fair business conduct. The strongest senti-
ments and interests may urge interference to prevent con-
duct which shocks or offends us, yet, failing some special and
RIGHTS AND DUTIES OF NATIONS
421
exceptional ground - some recognized international ground
for intervention we have no right to interfere, because
interference would be an infringement upon the independent
equality of the other state. The peace and order of the
world require that each nation shall mind its own business
and refrain from attempting to impose its ideas of conduct
upon other equal independent states. This is not because
the interference in the particular case might not be beneficial
so far as that case goes; but because the right to interfere in
one case carries with it the right to interfere in other cases;
the determination of the question when interference is justi-
fiable would necessarily rest with the interfering power; and
in the exercise of such a right all weaker states would become
subject to the control of the stronger and ultimately to the
control of the strongest. With the great varieties of race and
custom and conceptions of social morality in the human
family, the right of each nation to conduct its own internal
affairs according to its own ideas is of the essence of liberty.
The rule which prohibits interference by other nations, with
however good a purpose, is a rule against inevitable tyranny.
It is not at all uncommon that the best impulses and senti-
ments of our own people in this country are enlisted in favor
of action by our government which would do infinitely more
harm than good, by breaking down the barrier which the
principle of the independent equality of states presents
against the evils of foreign domination.
On the other hand the assertion of the independent
equality of states implies an interest on the part of all states
adhering to the doctrine in having it preserved, and it fol-
lows necessarily that when one sovereign state is dealing not
with its internal affairs but with its international relations
and violates the rule of right as against another equal and
independent state, all other equally independent states have
a right to insist that the international rule shall be observed,
422
INTERNATIONAL SUBJECTS
and such insistence is not interfering with the quarrels of
others but is an assertion of their own rights. In each case
every state must be guided by its own circumstances and
interests in determining how far it will go in supporting its
interference. There can, however, be no doubt of the inter-
national right to interfere in behalf of the maintenance of
the law. So far as it is possible to see now, if the issue of the
present conflict leaves the fundamental basis of international
law still existent the possibility of securing conformity to the
rules of law resting upon that basis will depend upon the
recognition by the nations in general of the duty to interfere
and insist upon the observance of the law and upon the
adoption by them of a practice in conformity with that duty.
The exercise of such an international right was well illus-
trated when, in November, 1861, the Commander of the
United States man-of-war the San Jacinto took the Con-
federate commissioners, Messrs. Mason and Slidell, from the
neutral British passenger vessel, the Trent. Upon England's
demanding the surrender to her of Mason and Slidell, the
Prussian Minister of Foreign Affairs, Count Bernstorff, the
father of the present German Ambassador to the United
States, wrote to the Prussian Minister at Washington for
communication to the American State Department a letter,
dated at Berlin, December 25, 1861. He said:
The maritime operations undertaken by President Lincoln against the
Southern seceding States could not, from their very commencement, but
fill the King's Government with apprehensions lest they should result in
possible prejudice to the legitimate interests of neutral powers.
These apprehensions have unfortunately proved fully justified by the
forcible seizure on board the neutral mail-packet the Trent, and the abduc-
tion therefrom, of Messrs. Mason and Slidell by the Commander of the
United States man-of-war the San Jacinto.
This occurrence, as you can well imagine, has produced in England and
throughout Europe the most profound sensation, and thrown not cabinets
only, but also public opinion, into a state of the most excited expectation.
For, although at present it is England only which is immediately con-
RIGHTS AND DUTIES OF NATIONS
423
cerned in the matter, yet on the other hand, it is one of the most important
and universally recognized rights of the neutral flag which has been called
into question.
In the absence of any reliable information we were in doubt as to
whether the Captain of the San Jacinto, in the course taken by him, had
been acting under orders from his Government or not. Even now we pre-
fer to assume that the latter was the case. Should the former supposition,
however, turn out to be the correct one, we should consider ourselves under
the necessity of attributing greater importance to the occurrence, and to
our great regret we should find ourselves constrained to see in it not an
isolated fact but a public menace offered to the existing rights of all
neutrals.
The French Foreign Office wrote, on December 3, 1861,
to the French Minister in Washington:
The wish to contribute to prevent a conflict, imminent perhaps between
two powers towards which it is animated by sentiments equally friendly,
and duty to maintain certain principles essential to the security of neutrals
with the effect of protecting the rights of its own flag from injury, have con-
vinced it (the Government of the Emperor) after matured reflection, that
it cannot under these circumstances remain altogether silent.
M. Thouvenel then discusses the merits of the Trent
affair, and proceeds:
Not wishing to enter into a more thorough discussion of the question
raised by the capture of MM. Mason and Slidell, I have said enough about
it, I believe, to establish that the Cabinet at Washington would not be
able, without infringing upon the principles for which all neutral powers
are equally interested in assuring respect or without contradicting its own
conduct up to this time, to give its approval to the proceedings of the
Commander of the San Jacinto.
The Austrian Government instructed its minister in
Washington in the same sense.
Here was a case in which these great powers asserted un-
hesitatingly their interest in maintaining the common right
of nations to have the rules of international law maintained.
The case happened to be free from those obstacles to frank
expression which have been so frequently presented by the
delicate adjustments necessary to preserve the balance of
424
INTERNATIONAL SUBJECTS
power in Europe, and accordingly the powers expressed them-
selves freely. It never occurred to anybody to deny that they
were within their rights. We can hardly doubt that their
expressions had a material effect in leading to the action of
the American Government in preventing war between Great
Britain and the United States, and in making effective a rule
of law which protects the rights of all neutrals.
Any nation which adheres to the American Institute's
declaration of the rights and duties of nations rests under a
duty, whenever the law which declares and protects those
rights is clearly violated or threatened, to follow some such
course as these continental nations followed in the Trent
case. This is not a duty created by law or by treaty. There
is no legal obligation, but there is a moral obligation, sup-
ported by enlightened self-interest, such as urges every
member of a civil community who is worthy of respect to
give his voice, his influence, his example, towards the pres-
ervation of the law through which alone the community
can continue to exist. If the nations really wish to have
peace and order maintained by law they must take an
interest in having the law observed. They must really mean
it, and act accordingly.
Furthermore the declaration of the Institute asserts the
subordination of nations to the obligations of morality. It
denies that any aggregation of human beings in any state,
under any form of government, can be superior to the duties
of good faith, of justice, and of humanity. I shall not discuss
that. No democracy, no republic, no form of government
based upon the rights of men, can continue to live in a
world which rejects that view. This Republic cannot con-
tinue to live in a world which rejects that view.
It is to be observed that this declaration, in which repre-
sentatives of all the American countries unite, asserts for all
the world as a matter of general public right the same prin-
RIGHTS AND DUTIES OF NATIONS
425
ciples which, somewhat more narrowly and upon a different
ground, the famous declaration of President Monroe asserted
in respect of the American republics. The message of
Monroe affirmed in effect that all the American states were to
be regarded as members of the community of nations; that
they were entitled to live, to be independent, to be treated as
equals, and to be free from oppression by other powers. He
gave notice that the attempt by any European power to
override these rights of the American states would be re-
garded as unfriendly to the United States, because it would
be dangerous to the peace and safety of the United States.
As we turn from the narrow limits of the Monroe Doctrine
to the broader field of universal international right set forth
in the declaration of the Institute, with the terrible lesson of
the great war in our minds, we may well assert that the
repudiation of these principles, the violation of these rules
anywhere within the confines of civilization, is dangerous to
the
peace and safety of the whole community of nations. To
the efforts of the community of nations towards defending
its
peace and safety against the destruction of the fundamen-
tal bases of its public right, the often quoted words of Mr.
Calhoun regarding the Monroe Doctrine are applicable. He
said in the Senate, in 1848:
Whether you will resist or not, and the measure of your resistance
whether it shall be by negotiation, remonstrance, or some intermediate
measure, or by a resort to arms; all this must be determined and decided
on the merits of the question itself. This is the only wise course.
There are cases of interposition where I would resort to the hazard of war
with all its calamities.
Whether the United States will soon have occasion or will
long have the ability or the will to maintain the Monroe
Doctrine lies in the uncertain future. Whether it will be
necessary for her to act in defense of the Doctrine or abandon
it, may well be determined by the issue of the present war.
426
INTERNATIONAL SUBJECTS
Whether when the occasion comes she will prove to have the
ability and the will to maintain the Doctrine, depends upon
the spirit of her people, their capacity for patriotic sacrifice,
the foresight and character of those to whose initiative in
foreign affairs the interests of the people are entrusted.
Whether the broader doctrine affirmed by the American
Institute of International Law is to be made effective for the
protection of justice and liberty throughout the world depends
upon
whether the vision of the nations shall have been so clar-
ified by the terrible lessons of these years that they can rise
above small struggles for advantage in international affairs,
and realize that correlative to each nation's individual right is
that nation's duty to insist upon the observance of the prin-
ciples of public right throughout the community of nations.
FOREIGN AFFAIRS, 1913-1916
ADDRESS AS TEMPORARY CHAIRMAN OF THE NEW YORK
REPUBLICAN CONVENTION, NEW YORK, FEBRUARY 15, 1916
Only those portions of this address which deal with international matters are
included in this volume.
WE
E are entering upon a contest for the election of a
president and the control of government under condi-
tions essentially new in the experience of our country. The
forms which we are about to follow are old and familiar; but
the grounds for action, the demand of great events for deci-
sion upon national conduct, the moral forces urging to a
solution of vaguely outlined questions, the tremendous con-
sequences of wisdom or folly in national policy, all these are
new to the great mass of American voters. Never since 1864
has an election been fraught with consequences so vital to
national life. All the ordinary considerations which play so
great a part in our presidential campaigns are and ought to
be dwarfed into insignificance. .
When a president and secretary of state have been law-
fully established in office the power of initiative in foreign
affairs rests with them. The nation is in their hands. Theirs
is the authority and theirs the duty to adopt and act upon
policies, subject to such laws as Congress may enact within
constitutional limits. Parliamentary opposition can take no
affirmative step; can accomplish no affirmative action. The
expression of public opinion can do nothing except as it
produces an influence upon the minds of those officers who
have the lawful power to conduct our foreign relations.
Their policy is the country's policy because it is they who
are authorized to act for the country. While they are work-
427
428
INTERNATIONAL SUBJECTS
ing out their policy all opposition, all criticism, all condem-
nation, are at the risk of weakening the case of one's own
country and frustrating the efforts of its lawful representa-
tives to succeed in what they are seeking to accomplish for
the country's benefit. An American should wish the repre-
sentatives of his country to succeed whatever may be their
party unless there be wrongdoing against conscience. How-
ever much he may doubt the wisdom of their course he should
help them where he can and refrain from placing obstacles
in their way. But when the president and secretary of state
have acted, and seek a new grant of power, they and the
party which is responsible for them must account for their
use of power to the people from whom it came, and the
people must pass judgment upon them, and then full and
frank public discussion becomes the citizen's duty.
The United States had rights and duties in Mexico.
More than forty thousand of our citizens had sought their
fortunes and made their homes there. A thousand millions
of American capital had been invested in that rich and pro-
ductive country, and millions of income from these enter-
prises were annually returned to the United States not
merely for the benefit of the investors, but for the enrich-
ment of our whole country and all its production and
enterprise. But revolution had come, and factional warfare
was rife. Americans had been murdered, American property
had been wantonly destroyed, the lives and property of all
Americans in Mexico were in danger. That was the situation
when Mr. Wilson became president in March, 1913. His
duty then was plain. It was, first, to use his powers as
president, to secure protection for the lives and property of
Americans in Mexico and to require that the rules of law
and stipulations of treaties should be observed by Mexico
towards the United States and its citizens. His duty was,
second, as the head of a foreign power to respect the inde-
FOREIGN AFFAIRS, 1913-1916
429
pendence of Mexico, to refrain from all interference with her
internal affairs, except as he was justified by the law of
nations for the protection of American rights. The President
of the United States failed to observe either of those duties.
He deliberately abandoned them both and followed an
entirely different and inconsistent purpose. He intervened
in Mexico to aid one faction in civil strife against another.
He undertook to pull down Huerta and set Carranza up in
his place. Huerta was in possession. He claimed to be the
constitutional president of Mexico. He certainly was the
de facto president of Mexico. Rightly or wrongly, good or
bad, he was there. From the north Carranza and a group of
independent chieftains were endeavoring to pull down the
power of Huerta. President Wilson took sides with them in
pulling down that power. In August, 1913, through Mr.
John Lind, he presented to Huerta a communication which
was in substance a demand that Huerta should retire per-
manently from the government of Mexico. When Huerta
refused, the power of the United States was applied to turn
him out. Foreign nations were induced to refuse to his
government the loans of money necessary to repair the
ravages of war and establish order. Arms and munitions of
war were freely furnished to the northern forces and withheld
from Huerta. Finally the President sent our army and navy
to invade Mexico and capture its great seaport, Vera Cruz,
and hold it and throttle Mexican commerce until Huerta fell.
The government of the United States intervened in Mexico
to control the internal affairs of that independent country
and to enforce the will of the American President in those
affairs by threat, by economic pressure, and by force of arms.
Upon what claim of right did this intervention proceed ?
Not to secure respect for American rights; not to protect
the lives or property of our citizens; not to assert the law of
nations; not to compel observance of the law of humanity.
430
INTERNATIONAL SUBJECTS
On the contrary, Huerta's was the only power in Mexico to
which appeal could be made for protection of life or property.
That was the only power which in fact did protect either
American or European or Mexican. It was only within the
territory where Huerta ruled that comparative peace and
order prevailed. The territory over which the armed power
of Carranza and Villa and their associates extended was the
theatre of the most appalling crimes. Bands of robbers
roved the country with unbridled license. Americans and
Mexicans alike were at their mercy, and American men were
murdered and American women were outraged with im-
punity. Thousands were reduced to poverty by the wanton
destruction of the industries through which they lived. The
payment of blackmail was the only protection of property
against burnings and robbery. No one in authority could or
would give protection or redress. It had become perfectly
plain that the terms upon which both Carranza and Villa
held their supporters, were unrestricted opportunity and
license for murder, robbery, and lust. Yet the government
of the United States ignored, condoned, the murder of Ameri-
can men and the rape of American women and destruction of
American property and insult to American officers and defile-
ment of the American flag and joined itself to the men who
were guilty of all these things to pull down the power of
Huerta. Why? The President himself has told us. It was
because he adjudged Huerta to be a usurper; because he
deemed that the common people of Mexico ought to have
greater participation in government and share in the land;
and he believed that Carranza and Villa would give them
these things. We must all sympathize with these sentiments,
but there is nothing more dangerous than misplaced senti-
ment. Of all men in this world, the man who had vested in
him the executive power of the United States was least at
liberty to sit in judgment of his own motion upon the title of
FOREIGN AFFAIRS, 1913–1916
431
a claimant to the Mexican presidency or to reform the land
laws of Mexico.
The results of this interference were most unfortunate. If
our government had sent an armed force into Mexico to
protect American life and honor we might have been opposed
but we should have been understood and respected by the
people of Mexico, because they would have realized that we
were acting within our international rights and performing
a nation's duty for the protection of its own people; but
when the President sent an armed force into Mexico to
determine the Mexican presidential succession he created
resentment and distrust of motives among all classes and
sections of the Mexican people. When our army landed at
Vera Cruz, Carranza himself, who was to be the chief benefi-
ciary of the act, publicly protested against it. So strong was
the resentment that he could not have kept his followers
otherwise. When Huerta had fallen, the new government
which for the day had succeeded to his place peremptorily
demanded the withdrawal of the American troops. The
universal sentiment of Mexicans required that peremptory
demand, and the troops were withdrawn. Still worse than
that, the taking of Vera Cruz destroyed confidence in the
sincerity of the American government in Mexico because
every intelligent man in Mexico believed that the avowed
reason for the act was not the real reason. The avowed
purpose was to compel a salute to the American flag. I will
state the circumstances: On the ninth of April, 1914, a boat's
crew from the Dolphin landed at a wharf in Tampico to take
off supplies. The use of that wharf had been prohibited, and
the Mexican officer in charge of the wharf put the crew under
arrest, but a higher officer ordered him to hold the boat's
crew at the wharf and await instructions. Within an hour
and a half the crew was set free. No injury or indignity was
suffered except the fact of the arrest. Immediate amends
432
INTERNATIONAL SUBJECTS
were made. The Mexican officer in command at Tampico
apologized; General Huerta's government apologized; the
officer who made the arrest was himself arrested and his
punishment promised. The admiral in command of our fleet
at Tampico demanded more public amends through a salute
to our flag, but there ensued a discussion as to the facts and
as to the character of the salute which the circumstances
demanded, the number of guns, and how, if at all, the salute
was to be returned. While that discussion was pending and
avowedly because of that incident the American Government
presented a twenty-four hour ultimatum and landed an
armed force and captured the city of Vera Cruz. Three
hundred Mexicans were reported killed; seventeen United
States marines were killed and many were wounded. At
that very time Mr. Bryan, with the President's approval, was
signing treaties with half the world agreeing that if any con-
troversy should arise it should be submitted to a joint com-
mission and no action should be taken until after a full year
had elapsed. This controversy arose on the ninth of April,
and on the twenty-first of the same month Vera Cruz was
taken. Several times the troops of Carranza and Villa had
arrested and imprisoned American consular officers and torn
down the American flags from the consulates and trampled
them in the mire, with indescribable indignities. The proofs
were in our hands and no attention was paid to them. Many
times soldiers of the United States, in uniform, on duty, had
been shot and killed or wounded by soldiers of Carranza and
Villa across the border. More than fifty of them have been
killed in this way and no attention has been paid to it. The
demand of a salute to the flag was never heard of again after
Vera Cruz was captured. There is not an intelligent man in
Mexico who believes that the dispute about the salute was
the real reason for the capture of Vera Cruz. Is there one
here who doubts that the alleged cause was but a pretext
FOREIGN AFFAIRS, 1913–1916
433
and that the real cause was the purpose to turn Huerta out
of office? The people of Mexico, who saw their unoffending
city captured by force of arms, three hundred of its people
slain, their soil violated, a foreign flag floating over their
great seaport, upon what they felt to be a false pretense,
were misled into imputing a more sinister purpose still — to
secure control of Mexico for the United States; and they
believed that when the American troops departed, that pur-
pose was abandoned through fear. With the occupation of
Vera Cruz the moral power of the United States in Mexico
ended. We were then and we are now hated for what we did
to Mexico, and we were then and we are now despised for
our feeble and irresolute failure to protect the lives and
rights of our citizens. No flag is so dishonored and no
citizenship so little worth the claiming in Mexico as ours.
And that is why we have failed in Mexico.
Incredible as it seems, Huerta had been turned out by the
assistance of the American government without any guaran-
tees from the men who were to be set up in his place, and so
the murdering and burning and ravishing have gone on to
this day. After Huerta had fallen and the Vera Cruz
expedition had been withdrawn, President Wilson announced
that no one was entitled to interfere in the affairs of Mexico;
that she was entitled to settle them herself. He disclaims all
responsibility for what happens in Mexico and contents him-
self with a policy of Watchful Waiting. But who can inter-
fere in a quarrel and help some contestants and destroy
others and then absolve himself from responsibility for the
results ? It is not by force of circumstances over which we
had no control, but largely because the American Administra-
tion intervened by force to control the internal affairs of that
country instead of asserting and maintaining American rights
that we have been brought to our present pass of confusion
and humiliation over Mexico.
434
INTERNATIONAL SUBJECTS
And for the death and outrage, the suffering and ruin of
our own brethren, the hatred and contempt for our country,
and the dishonor of our name in that land, the Administration
at Washington shares responsibility with the inhuman brutes
with whom it made common cause.
When we turn to the Administration's conduct of foreign
affairs incident to the great war in Europe we cannot fail to
perceive that there is much dissatisfaction among Americans.
Some are dissatisfied for specific reasons, some with a vague
impression that our diplomacy has been inadequate. Dis-
satisfaction is not in itself ground for condemnation. The
best work of the diplomatist often fails to receive public
approval at the time and must look to a calm review in the
dispassionate future for recognition of its merit. The situa-
tion created by the war has been difficult and trying. Much
of the correspondence of the State Department, especially
since Mr. Lansing took charge, has been characterized by
accurate learning and skillful statement of specific American
rights. Every one in the performance of new and unprece-
dented duties is entitled to generous allowance for unavoid-
able shortcomings and errors. No one should be held to the
accomplishment of the impossible. The question whether dis-
satisfaction is just or unjust is to be determined upon an exam-
ination of the great lines of policy which have been followed
and upon considering whether the emergencies of the time
have been met with foresight, wisdom, and decisive courage.
If these are lacking as guides, all the learning of the institutes
and the highest skill in correspondence are of little avail.
A study of the Administration's policy towards Europe
since July, 1914, reveals three fundamental errors. First,
the lack of foresight to make timely provision for backing
up American diplomacy by actual or assured military and
naval force. Second, the forfeiture of the world's respect
for our assertion of rights by pursuing the policy of making
FOREIGN AFFAIRS, 1913–1916
435
threats and failing to make them good. Third, a loss of the
moral forces of the civilized world through failure to truly
interpret to the world the spirit of the American democracy
in its attitude towards the terrible events which accompanied
the early stages of the war.
First, as to power.
When the war in Europe began, free, peaceable little
Switzerland instantly mobilized upon her frontier a great
army of trained citizen soldiers. Sturdy little Holland did
the same, and, standing within the very sound of the guns,
both have kept their territory and their independence in-
violate. Nobody has run over them because they have
made it apparent that the cost would be too great.
Great, peaceable America was farther removed from the
conflict, but her trade and her citizens travelled on every sea.
Ordinary knowledge of European affairs made it plain that
the war was begun not by accident, but with purpose which
would not soon be relinquished. Ordinary knowledge of
military events made it plain from the moment when the
tide of German invasion turned from the Battle of the
Marne that the conflict was certain to be long and desperate.
Ordinary knowledge of history — of our own history during
the Napoleonic wars - made it plain that in that conflict
neutral rights would be worthless unless powerfully main-
tained. All the world had fair notice that, as against the
desperate belligerent resolve to conquer, the law of nations
and the law of humanity interposed no effective barriers for
the protection of neutral rights. Ordinary practical sense in
the conduct of affairs demanded that such steps should be
taken that behind the peaceable assertion of our country's
rights, its independence and its honor, should stand power, ,
manifest and available, warning the whole world that it
would cost too much to press aggression too far. The Demo-
cratic government at Washington did not see it. Others saw
436
INTERNATIONAL SUBJECTS
it and their opinions found voice. Mr. Gardner urged it;
Mr. Lodge urged it; Mr. Stimson urged it; Mr. Roosevelt
urged it; but their argument and urgency were ascribed to
political motives; and the President described them with a
sneer as being nervous and excited.
But the warning voices would not be stilled. The opinion
that we ought no longer to remain defenseless became public
opinion. Its expression grew more general and insistent, and
finally the President, not leading, but following, has shifted
his ground, has reversed his position, and asks the country
to prepare against war. God grant that he be not too late.
But the Democratic party has not shifted its ground. A
large part of its members in Congress are endeavoring now
to sidetrack the movement for national preparedness; to
muddle it by amendment and turn it into channels which
will produce the least possible result in the increase of na-
tional power of defense. What sense of effectiveness in this
effort can we gather from the presence of Josephus Daniels
at the most critical post of all the head of the Navy De-
partment; when we see that where preparation has been
possible it has not been made; when we see that construction
of war ships already authorized has not been pressed, and
in some cases after long delay has not even been begun?
If an increase of our country's power to defend itself
against aggression is authorized by the present Congress it
must be largely through Republican votes, because the
representatives of the Republican party in Washington
stand for the country no matter who is president; and all
the traditions and convictions of that party are for national
power and duty and honor.
As to the policy of threatening words without deeds.
When Germany gave notice of her purpose to sink mer-
chant vessels on the high seas without safeguarding the lives
FOREIGN AFFAIRS, 1913–1916
437
of innocent passengers, our Government replied on the tenth
of February, one year ago, in the following words:
The Government of the United States . . . feels it to be its duty to
call the attention of the Imperial German Government, with sincere
respect and the most friendly sentiments but very candidly and earnestly,
to the very serious possibilities of the course of action apparently con-
templated under that proclamation.
The Government of the United States views those possibilities with
such grave concern that it feels it to be its privilege, and indeed its duty
in the circumstances, to request the Imperial German Government to con-
sider before action is taken the critical situation in respect of the relations
between this country and Germany which might arise were the German
naval forces, in carrying out the policy foreshadowed in the Admiralty's
proclamation, to destroy any merchant vessel of the United States or
cause the death of American citizens.
If such a deplorable situation should arise, the Imperial German
Government can readily appreciate that the Government of the United
States would be constrained to hold the Imperial German Government
to a strict accountability for such acts of their naval authorities and to
take any steps it might be necessary to take to safeguard American lives
and property and to secure to American citizens the full enjoyment of
their acknowledged rights on the high seas.
By all the usages and traditions of diplomatic intercourse
those words meant action. They informed Germany in
unmistakable terms that in attacking and sinking vessels of
the United States and in destroying the lives of American
citizens lawfully travelling upon merchant vessels of other
countries, she would act at her peril. They pledged the power
and courage of America, with her hundred million people and
her vast wealth, to the protection of her citizens, as during
all her history through the days of her youth and weakness
she had always protected them.
On the twenty-eighth of March, the passenger steamer
Falaba was torpedoed by a German submarine, and an
American citizen was killed, but nothing was done. On the
twenty-eighth of April, the American vessel Cushing was
attacked and crippled by a German aeroplane. On the first
438
INTERNATIONAL SUBJECTS
of May, the American vessel Gulflight was torpedoed and
sunk by a German submarine, and two or more Americans
were killed, yet nothing was done. On the seventh of May,
the Lusitania was torpedoed and sunk by a German sub-
marine, and more than one hundred Americans and eleven
hundred other non-combatants were drowned. The very
thing which our Government had warned Germany she
must not do, Germany did of set purpose and in the most
contemptuous and shocking way. Then, when all America
was stirred to the depths, our Government addressed another
note to Germany. It repeated its assertion of American
rights, and renewed its bold declaration of purpose. It de-
clared again that the American Government "must hold
the Imperial German Government to a strict accountability
for any infringement of those rights, intentional or inci-
dental,” and it declared that it would not“ omit any word
or any act necessary to the performance of its sacred duty of
maintaining the rights of the United States and its citizens
and of safeguarding their free exercise and enjoyment.
Still nothing was done, and a long and technical corre-
spondence ensued; haggling over petty questions of detail,
every American note growing less and less strong and per-
emptory, until the Arabic was torpedoed and sunk, and more
American lives were destroyed, and still nothing was done,
and the correspondence continued until the Allied defense
against German submarine warfare made it unprofitable
and led to its abandonment, and the correspondence is
apparently approaching its end without securing even that
partial protection for the future which might be found in an
admission that the destruction of the Lusitania was for-
bidden by law. The later correspondence has been conducted
by our State Department with dignity, but it has been futile.
An admission of liability for damages has been secured, but
the time for real protection to American rights has long since
FOREIGN AFFAIRS, 1913–1916
439
passed. Our Government undertook one year ago to prevent
the destruction of American life by submarine attack, and
now that the attempt has failed and our citizens are long
since dead and the system of attack has fallen of its own
weight, there is small advantage in discussing whether we
shall or shall not have an admission that it was unlawful
to kill them.
The brave words with which we began the controversy had
produced no effect, because they were read in the light of
two extraordinary events. One was the report of the Aus-
trian Ambassador, Mr. Dumba, to his government, that
when the American note of February tenth was received, he
asked the Secretary of State, Mr. Bryan, whether it meant
business, and received an answer which satisfied him that
it did not, but was intended for effect at home in America.
The other event was the strange and unfortunate declara-
tion of the President in a public speech in Philadelphia the
fourth day after the sinking of the Lusitania that “ a man
may be too proud to fight.” Whatever the Austrian Am-
bassador was in fact told by the Secretary of State, the
impression which he reported was supported by the events
which followed. Whatever the President did mean, his
declaration, made in public at that solemn time, amid the
horror and mourning of all our people over the murder of
their brethren, was accepted the world over as presenting
the attitude of the American government towards the pro-
tection of the life and liberty of American citizens in the
exercise of their just rights, and throughout the world the
phrase “ too proud to fight” became a by-word of derision
and contempt for the Government of the United States.
Later, in another theatre of war- the Mediterranean
Austria, and perhaps Turkey also, resumed the practice.
The Ancona and then the Persia were destroyed, and more
Americans were killed. Why should they not resume the
440
INTERNATIONAL SUBJECTS
practice? They had learned to believe that, no matter how
shocked the American Government might be, its resolution
would expend itself in words. They had learned to believe
that it was safe to kill Americans, — and the world believed
with them. Measured and restrained expression, backed to
the full by serious purpose, is strong and respected. Extreme
and belligerent expression, unsupported by resolution, is
weak and without effect. No man should draw a pistol who
dares not shoot. The government that shakes its fist first
and its finger afterwards falls into contempt. Our diplo-
macy has lost its authority and influence because we have
been brave in words and irresolute in action. Men may say
that the words of our diplomatic notes were justified; men
may say that our inaction was justified; but no man can
say that both our words and our inaction were wise and
creditable.
I have said that this Government lost the moral forces of
the world by not truly interpreting the spirit of the American
democracy.
The American democracy stands for something more than
beef and cotton and grain and manufactures; stands for
something that cannot be measured by rates of exchange,
and does not rise or fall with the balance of trade. The
American people achieved liberty and schooled themselves
to the service of justice before they acquired wealth, and
they value their country's liberty and justice above all their
pride of possessions. Beneath their comfortable optimism
and apparent indifference they have a conception of their
great republic as brave and strong and noble to hand down
to their children the blessings of freedom and just and equal
laws. They have embodied their principles of government
in fixed rules of right conduct which they jealously preserve,
and, with the instinct of individual freedom, they stand for
FOREIGN AFFAIRS, 1913-1916
441
a government of laws and not of men. They deem that the
moral laws which formulate the duties of men towards each
other are binding upon nations equally with individuals.
Informed by their own experience, confirmed by their obser-
vation of international life, they have come to see that the
independence of nations, the liberty of their peoples, justice
and humanity, cannot be maintained upon the good nature,
the kindly feeling, of the strong towards the weak; that real
independence, real liberty, cannot rest upon sufferance; that
peace and liberty can be preserved only by the authority and
observance of rules of national conduct founded upon the
principles of justice and humanity; only by the establish-
ment of law among nations, responsive to the enlightened
public opinion of mankind. To them liberty means not
liberty for themselves alone, but for all who are oppressed.
Justice means not justice for themselves alone, but a shield
for all who are weak against the aggression of the strong.
When their deeper natures are stirred they have a spiritual
vision in which the spread and perfection of free self-govern-
ment shall rescue the humble who toil and endure, from the
hideous wrongs inflicted upon them by ambition and lust for
power, and they cherish in their heart of hearts an ideal of
their country loyal to the mission of liberty for the lifting up
of the oppressed and bringing in the rule of righteousness
and peace.
To this people, the invasion of Belgium brought a shock
of amazement and horror. "The people of Belgium were
peaceable, industrious, law-abiding, self-governing and free.
They had no quarrel with any one on earth. They were
attacked by overwhelming military power; their country
was devastated by fire and sword; they were slain by tens
of thousands; their independence was destroyed and their
liberty was subjected to the rule of an invader, for no other
cause than that they defended their admitted rights. There
442
INTERNATIONAL SUBJECTS
was no question of fact; there was no question of law; there
was not a plausible pretense of any other cause. The
admitted rights of Belgium stood in the way of a mightier
nation's purpose; and Belgium was crushed. When the true
nature of these events was realized, the people of the United
States did not hestitate in their feeling or in their judgment.
Deepest sympathy with downtrodden Belgium and stern
condemnation of the invader were practically universal.
Wherever there was respect for law, it revolted against the
wrong done to Belgium. Wherever there was true passion for
liberty, it blazed out for Belgium. Wherever there was hu-
manity, it mourned for Belgium. As the realization of the
truth spread, it carried a vague feeling that not merely
sentiment but loyalty to the eternal principles of right was
involved in the attitude of the American people. And it
was so, for if the nations were to be indifferent to this first
great concrete case for a century of military power trampling
under foot at will the independence, the liberty, and the life
of a peaceful and unoffending people in repudiation of the
faith of treaties and the law of nations and of morality and
of humanity — if the public opinion of the world was to
remain silent upon that, neutral upon that, then all talk
about peace and justice and international law and the rights
of man, the progress of humanity and the spread of liberty
is idle patter - mere weak sentimentality; then opinion is
powerless and brute force rules and will rule the world. If
no difference is recognized between right and wrong, then
there are no moral standards. There come times in the lives
of nations as of men when to treat wrong as if it were right
is treason to the right.
The American people were entitled not merely to feel but
to speak concerning the wrong done to Belgium. It was not
like interference in the internal affairs of Mexico or any other
nation, for this was an international wrong. The law pro-
FOREIGN AFFAIRS, 1913–1916
443
tecting Belgium which was violated was our law and the law
of every other civilized country. For generations we had
been urging on and helping in its development and estab-
lishment. We had spent our efforts and our money to that
end. In legislative resolution and executive declaration and
diplomatic correspondence and special treaties and inter-
national conferences and conventions we had played our part
in conjunction with other civilized countries in making that
law. We had bound ourselves by it; we had regulated our
conduct by it; and we were entitled to have other nations
observe it. That law was the protection of our peace and
security. It was our safeguard against the necessity of
maintaining great armaments and wasting our substance in
continual readiness for war. Our interest in having it main-
tained as the law of nations was a substantial, valuable,
permanent interest, just as real as your interest and mine in
having maintained and enforced the laws against assault
and robbery and arson which protect our personal safety and
property. Moreover, that law was written into a solemn
and formal convention, signed and ratified by Germany and
Belgium and France and the United States in which those
other countries agreed with us that the law should be ob-
served. When Belgium was invaded that agreement was
binding not only morally but strictly and technically, because
there was then no nation a party to the war which was not
also a party to the convention. The invasion of Belgium
was a breach of contract with us for the maintenance of a
law of nations which was the protection of our peace, and
the interest which sustained the contract justified an objec-
tion to its breach. There was no question here of interfering
in the quarrels of Europe. We had a right to be neutral and
we were neutral as to the quarrel between Germany and
France, but when as an incident to the prosecution of that
quarrel Germany broke the law which we were entitled to
444
INTERNATIONAL SUBJECTS
have preserved, and which she had agreed with us to pre-
serve, we were entitled to be heard in the assertion of our
own national right. With the right to speak came responsi-
bility, and with responsibility came duty -- duty of govern-
ment towards all the peaceful men and women in America
not to acquiesce in the destruction of the law which protected
them, for if the world assents to this great and signal viola-
tion of the law of nations, then the law of nations no longer
exists and we have no protection save in subserviency or in
force. And with the right to speak there came to this, the
greatest of neutral nations, the greatest of free democracies
another duty to the cause of liberty and justice for which
America stands; duty to the ideals of America's nobler
nature; duty to the honor of her past and the hopes of her
future; for this law was a bulwark of peace and justice to
the world; it was a barrier to the spread of war; it was a
safeguard to the independence and liberty of all small, weak
states. It marks the progress of civilization. If the world
consents to its destruction the world turns backwards
towards savagery, and America's assent would be America's
abandonment of the mission of democracy.
Yet the American Government acquiesced in the treat-
ment of Belgium and the destruction of the law of nations.
Without one word of objection or dissent to the repudiation
of law or the breach of our treaty or the violation of justice
and humanity in the treatment of Belgium, our government
enjoined upon the people of the United States an undis-
criminating and all-embracing neutrality, and the President
admonished the people that they must be neutral in all
respects in act and word and thought and sentiment. We
were to be not merely neutral as to the quarrels of Europe,
but neutral as to the treatment of Belgium; neutral between
right and wrong; neutral between justice and injustice;
neutral between humanity and cruelty; neutral between
FOREIGN AFFAIRS, 1913–1916
445
liberty and oppression. Our Government did more than
acquiesce, for in the first Lusitania note, with the unspeak-
able horrors of the conquest of Belgium still fresh in our
minds, on the very day after the report of the Bryce Com-
mission on Belgian Atrocities, it wrote these words to the
Government of Germany:
Recalling the humane and enlightened attitude hitherto assumed by
the Imperial German Government in matters of international right, and
particularly with regard to the freedom of the seas, having learned to
recognize the German views and the German influence in the field of
international obligation as always engaged upon the side of justice and
humanity, etc.
And so the Government of the United States appeared as
approving the treatment of Belgium. It misrepresented the
people of the United States in that acquiescence and apparent
approval. It was not necessary that the United States should
go to war in defense of the violated law. A single official
expression by the Government of the United States, a single
sentence denying assent and recording disapproval of what
Germany did in Belgium would have given to the people of
America that leadership to which they were entitled in their
earnest groping for the light. It would have ranged behind
American leadership the conscience and morality of the
neutral world. It would have brought to American diplo-
macy the respect and strength of loyalty to a great cause.
But it was not to be. The American Government failed to
rise to the demands of the great occasion. Gone were the
old love of justice; the old passion for liberty; the old sym-
pathy with the oppressed; the old ideals of an America
helping the world towards a better future; and there re-
mained in the eyes of mankind only solicitude for trade and
profit and prosperity and wealth.
The American Government could not really have approved
the treatment of Belgium, but under a mistaken policy it
446
INTERNATIONAL SUBJECTS
shrank from speaking the truth. That vital error has carried
into every effort of our diplomacy the weakness of a false
position. Every note of remonstrance against interference
with trade, or even against the destruction of life, has been
projected against the background of an abandonment of the
principles for which America once stood, and has been
weakened by the popular feeling among the peoples of
Europe, whose hearts are lifted up by the impulses of pa-
triotism and sacrifice, that America has become weak and
sordid.
Such policies as I have described are doubly dangerous in
their effect upon foreign nations and in their effect at home.
It is a matter of universal experience that a weak and appre-
hensive treatment of foreign affairs invites encroachments
upon rights and leads to situations in which it is difficult
to prevent war, while a firm and frank policy at the outset
prevents difficult situations from arising and tends most
strongly to preserve peace. On the other hand, if a govern-
ment is to be strong in its diplomacy, its own people must
be ranged in its support by leadership of opinion in a na-
tional cause worthy to awaken their patriotism and devotion.
We have not been following the path of peace. We have
been blindly stumbling along the road that continued will
lead to inevitable war. Our diplomacy has dealt with symp-
toms and ignored causes. The great decisive question upon
which our peace depends, is the question whether the rule of
action applied to Belgium is to be tolerated. If it is tolerated
by the civilized world, this nation will have to fight for its
life. There will be no escape. That is the critical point of
defense for the peace of America.
When our Government failed to tell the truth about
Belgium, it lost the opportunity for leadership of the moral
sense of the American people, and it lost the power which a
knowledge of that leadership and a sympathetic response
FOREIGN AFFAIRS, 1913–1916
447
from the moral sense of the world would have given to our
diplomacy. When our Government failed to make any pro-
vision whatever for defending its rights in case they should
be trampled upon, it lost the power which a belief in its
readiness and will to maintain its rights would have given to
its diplomatic representations. When our Government gave
notice to Germany that it would destroy American lives and
American ships at its peril, our words, which would have
been potent if sustained by adequate preparation to make
them good, and by the prestige and authority of the moral
leadership of a great people in a great cause, were treated
with a contempt which should have been foreseen; and
when our Government failed to make those words good, its
diplomacy was bankrupt.
Upon the record of performance which I have tried to
describe, will the American people say that the Democratic
party is entitled to be continued in power ?
INDEX
INDEX
Abdul-Aziz, sultan of Turkey (1861- Antioquia, Colombian state, 191.
1876), 283, 284.
Arabic, the, torpedoed, 438.
Acapulco, 229, 299.
Arbitral Justice, Court of, proposed, 86,
Adams, President John Quincy, 120, 223; 364.
on South American independence, 114. Arbitral tribunals, characteristics of, 148.
Adrian, see Hadrian.
Arbitration, international, 31 f., 33–42,
Agadir, 165.
57, 135, 140 ff., 144, 147 ff.; principle
Aggression, intentional, pretext always of, the United States committed to,
sought for, 166.
232–238, 332, 432; vital questions of
Aix-la-Chapelle, Congress of (1818), 106. public policy cannot be submitted to,
Alabama Claims, arbitration of the, at 165 f.
Geneva, 66 f., 213, 291, 301.
Arbitrations, tendency of, 83 f., 140 f.
Alaska, 299; boundary dispute, 301. Ardila, Panaman notable, 196.
Alexander II, emperor of Russia (1855– Argentina, 115, 120, 253 ff.
1881), 93.
Argentine Confederation, Argentine Re-
Alexander, Joshua W., American con- public, see Argentina.
gressman, 358.
Armaments, limitation of, 137 f.
Alexandria, 101.
Arosemana, Justo, Panaman notable,
Algeciras, Conference of (1906), 46, 165. 196.
Aliens, rights of, under treaties, 7-23. Arosemana, Pablo, Panaman legislator,
Altruism, defects and merits of, 132 f. 196.
Ambassador from Brazil, see Gama. Arthur, President, 237.
American Institute of International Law, Ashburton, Lord, 4.
the, 405, 411; its Declaration of the Asser, T. M. C., of Holland, 165.
Rights and Duties of Nations, 412- Association for the Reform and Codifi-
426.
cation of the Law of Nations, 63 f.
American Peace Society, the, 63. Atmosphere of the court room, import-
American people, the, characterized, ance of, 37.
133 f., 440 f.
Austria-Hungary, 71, 78, 99, 170, 176,
Americans, killing of, thought safe, 440. 283, 308, 319, 365, 379, 439.
American Society for Judicial Settlement
of International Disputes, 145, 150, Bacon, Lord, saying of, 157.
151 f.
Bahamas, the, 210.
American Society of International Law, Bailey, Joseph Weldon, American sena-
3,7 f., 72, 89, 124, 126, 154, 404, 413. tor, 321, 322.
Amos, Sheldon, on Lieber, 94.
Balance of power, the, in Europe, 111,
Anarchy, tendency of democracies to 165, 395, 418.
lapse into, 418; condition of, in Mexi- Baldwin, Simeon Eben, governor of
co, 333 f., 430.
Connecticut, 407 f.
Ancona, the, destroyed, 439.
Balkans, the, 174.
Anglo-Saxon liberty, 388.
Baltic ports, the, of Russia, 299.
461
452
INDEX
Baltimore, 299.
Boxer Rebellion, the, in China (1900-
Bancroft, George, American diplomat 1901), 47, 205.
and historian, 97; negotiates treaties Brandegee, Frank Bosworth, American
with the German states, 319 f.
senator, 240.
Bar, Ludwig von, professor of criminal Brazil, 52 f., 120.
law at Göttingen, 164.
Bremen trade, the, 383.
Bard, Thomas Robert, American sena- Brest, 75.
tor, 221.
British Guiana, 210.
Bayard, Chevalier de, 174.
British Honduras, 210.
Bayard, Thomas Francis, American Brussels Conference, the (1874), 93.
statesman and diplomat, 301 f. Bryan, William Jennings, American
Beaupré, Arthur Matthias, American politician, 432, 439.
diplomat, 198 f.
Bryce Commission on Atrocities in Bel-
Belgium, 170, 176, 319, 386, 387; inva- gium, the, 445.
sion of, 441-447.
Buchanan, James, 110, 317.
Belize, see British Honduras.
Buchanan, William Insco, American dip-
Bentham, Jeremy, 62.
lomat, 176.
Bentwich, Norman, remarks of, in the Buffalo, 294.
Fortnightly Review, 82 f.
Buffer states, establishment of, 111.
Berlin, entry of Napoleon into (1806), 96. Bunau-Varilla, Panaman diplomat, 175,
Berlin Decree, the (1806), 75.
243.
Bermuda, 210.
Bureau of International Peace, the, 63.
Berne, meeting of economists and publi- Burritt, Elihu, 'the Learned Black-
cists at, 169 f.
smith,' 63.
Bernstorff, Albrecht, Count, Prussian Burton, Theodore Elijah, American sena-
minister, 422.
tor, 345.
Bernstorff, Johann Heinrich, Count,
German diplomat, 422.
Cadwalader, American general, 90.
Biddle, Nicholas, American financier, 97. Calhoun, John Caldwell, American
Binney, Horace, American lawyer, 91. statesman, 110, 425.
Black, Jeremiah Sullivan, attorney- California, 9-23, 154, 209.
general of the United States, 317. Calvo, Carlos, publicist, 34.
Black Sea, the, neutralization of, 180. Canada, 213 f., 269, 299, 388.
Blaine, James Gillespie, American states- Canal Zone, the, 207, 225 ff., 241, 243,
man, 222, 237, 262 f., 278.
285, 296.
Blockades, in the Declaration of Paris, Canning, George, English statesman,
106, 114.
Blücher, Prussian general, 96.
Cape Horn, perils of navigation around,
Bluntschli, Johann Kaspar, publicist, 62, 179.
99, 406; comments of, on Lieber's Capital, accumulation of, 45.
work, 94 f., 101 f.
Caribbean Sea, the, 121, 179, 226, 410.
Bogota, capital of Colombia, 187, 192, Carnegie Endowment for International
193, 194, 195, 197, 198, 199.
Peace, the, 124 f., 126, 154.
Bolivar, Colombian state, 191.
Caroline Islands, the, 299.
Boston, 16, 97, 294, 370.
Carranza, Venustiano, Mexican chief,
Bourbons, restored to the throne of 429-432.
France, 106.
Carson, Sir Edward, 391.
78.
INDEX
453
Cartago, Costa Rica, permanent court | Choate, Joseph Hodges, American diplo-
for the Central American states estab- mat, 145, 247 f., 256, 259, 269, 272,
lished at (1908), 154.
276, 279, 280, 281, 286 f., 288, 294 f.,
Cases: the Adela, 41; the Aghios Geor- 307 f.
ghios, 381; Baldwin v. Franks, 17; Christian Church, the, 395.
Chirac v. Chirac, 19; the Circassian, Christiania, Norway, 154.
41; Costello (1866), 318; the Dashing Civilization, advances of, 139, 418.
Wave, 40; Delagoa Bay, 385 f.; Ernst, Civil War, the, 66, 75 f., 89–95, 370.
317; Fairfax 0. Hunter, 19; Geofroy Clay, Henry, American statesman, 120,
v. Riggs, 14 f.; the Georgia, 40; the 223, 260 f.
Hiawatha, 41; the Isabella Thompson, Clayton, John Middleton, American
40; Olsen o. Smith, 298; the Parlement politician, 110, 210, 211.
Belge, 386 f.; Tiburicio Parrot, 17; the Cleveland, President Grover, on the
Pearl, 41; the Peterhof, 40; the Science, Monroe Doctrine, 108; on differential
41; Shank u. Dupont, 316; the Sir tolls at Canadian canals, 213 f.; on
William Peel, 41; the Springbock, 41; the neutrality of interoceanic routes,
the Vasilios, 381; the Volant, 41; 224, 264; on arbitration, 238,
Ware o. Hylton, 18; Warren (1866) 'Coasting trade,' 'coastwise trade,' use
318; Williams (1797), 315 f.
of the terms, 227 f., 298 f.
Cass, Lewis, on the scope of the Monroe Codification of international law, 405–
Doctrine, 117; on the isthmian route, 411; private, 57-72, 408 f.; private
188 f., 224; on canal privileges, 222, codification goes for nothing unless
258, 262.
accepted by governments, 408 f.
Cauca, Colombian state, 191.
Coercion, to be avoided by peace con-
Caucuses, place of, 348.
ferences, 143.
Cavour, Italian statesman, 174.
Colberg, city in Prussia, 96.
Central America, 47, 189, 210, 211, 224, Collegium, 8.
236, 258, 261, 410.
Colombia, 228 f., 230, 268 f., 295 f., 299,
Central American Peace Congress, the 309; relations of, with Panama and
(1907), 153 f.
the United States, 175–206.
Central Office of International Institu- Colon, city, 194, 202, 203, 204, 205.
tions, the, at Brussels, 64.
Colonies, growth of, 29.
Chaffee, Adna Romanza, American Colonization, right of, in America, no
general, at Peking, 205.
longer asserted, 107.
Chamber of Commerce of New York, Colt, Le Baron Bradford, American sena-
356.
tor, 295, 296.
Channel, English, 386.
Columbia College, Lieber at, 90, 97.
Charleston, 16.
Colunje, Gil, Panaman legislator, 196.
Chesapeake Bay, 369.
Confederate archives, classified and ar-
Chicago, 359.
ranged by Lieber, 98.
Chile, 120.
Confederate cruisers, fitted out in the
China, 46, 47, 48, 176, 205, 272 ff.
ports of Great Britain, 76.
Chinamen, mobbed, 52.
Confederation of the Rhine, the, 96.
Chinese children, separate schools for, Conference of Teachers of International
in California, 10.
Law and Related Subjects (1914), 125.
Chinese policy, the, of America, 321 f. Conflict of treaties and state laws, 17-20.
Chiriqui, province, 191.
Conformity, impulse of, 28.
454
INDEX
Constantinople, Convention of (1888), Danubian principalities, 180.
219, 220, 221, 229 ff., 245, 249, 264 f., Dardanelles, the, 180.
282–285, 290, 295, 296.
Darien, Isthmus of, 258. See Panama.
Constantinople, Treaty of, see Constan- Davis, Bancroft, 16.
tinople, Convention of.
Davis, Cushman Kellogg, American
Constitution, American, 39 f., 51.
senator, 215, 220, 229, 264, 288.
Constitutional government, modification Declaration of Independence, the, 28, 32,
of, by practice, 349.
209, 416.
Constitutional provisions, reason for, 61. Declaration of the Rights and Duties of
Continental Congress, treaty-making Nations, the (Jan. 6, 1916), 413–426.
power exercised by, 15 f.
De Jure Belli et Pacis, by Grotius, 156,
Contraband, search for, 389 f.
402.
Contract debts, ordinary, of govern- De Lesseps Company, see Panama Canal
ments, not to be collected by force, Company
139 f.
Democracy, dangers of, as respects in-
Control of American nations by the ternational relations, 7 f., 22 f., 127 f.,
United States, not involved in the 310 f.; tendency of democracies to
Monroe Doctrine, 119 f.
lapse into anarchy, 418; what the
Conventions: for the International Pro- American democracy stands for, 440 f.
tection of Industrial Property (1883) Democracy in America, by de Tocque-
65; for the Protection of Submarine ville, 310.
Cables (1884), 65; for the Exchange of Democratic party, the, 435, 436, 447.
Official Documents (1886), 65; for the Denmark, 170, 176, 319.
Publication of Customs Tariffs (1890), Denver, 52.
65; for the Prohibition of the Use of Devonshire, Duke of, on the Monroe
Explosive Bullets (1868), 65; Geneva Doctrine, 109.
Convention relating to the Treatment Diplomacy, former character of, 135;
of the Wounded of Armies in the Field, present relation of, to moral standards,
(1864), 65; for the Pacific Settlement 135; American, has lost authority and
of International Disputes (1899), 399 f. influence, 440.
Costa Rica, 176, 190, 211, 220, 264, 299. Discussion in legislative bodies, uses of,
Crete, 180.
339 f., 347–350.
Crimean War, the, 318.
Disraeli (Earl of Beaconsfield), 283.
Crowe, English delegate, 372.
Distribution of powers, 14.
Cruelty, now shocks the sensibilities, 172. Dolphin, the, American naval vessel, 431.
Cuba, 110, 153, 176, 206.
Don Pacifico case, the, 49.
Cullom, Shelby Moore, American sena- Drago, Luis Maria, Argentine publicist,
tor, 281, 288, 295.
34, 115.
Cummins, Albert Baird, American seda- Drago Doctrine, the, 139 f.
tor, 215 f., 305, 345.
Droit oblige, 102.
Cundinamarca, Colombian state, 191. Dufour, Guillaume Henri, Swiss general,
Cushing, the, attacked by an aeroplane, 101.
487.
Dumba, Konstantin Theodor, Austrian
Cynics, attitude of, 87.
diplomat, 439.
Duplessix, French publicist, 63.
Daniels, Josephus, secretary of the navy, Duties, to be kept in mind as well as
496.
rights, 102, 127 f.
INDEX
455
Eastern Question, the, 165.
Fiore, Pasquale, Italian publicist, 62 f.
Ecuador, 190.
Fish, Hamilton, American statesman,
Edmonds, George Washington, Ameri- 52 f.
can congressman, 357 f.
Fisheries arbitration, the, 296 f.
Edward VII, king of England (1901- Fletcher, Duncan Upshaw, American
1910), 274.
senator, 339, 342, 343, 345.
Egypt, 180, 229, 230 f.; British occupa- Force, world said to be ruled by, 135.
tion of, 121.
France, 71, 78, 106, 107, 109, 110, 114,
Elba, Napoleon's escape from, 96.
170, 176, 258, 308, 316, 320, 332, 358,
Elbe, the, 75.
365, 367, 368, 369, 370, 371, 378, 379,
Electoral college, the, 178, 349.
380, 383, 386, 387, 443.
El Relator, newspaper of Bogota, quoted, Franco-German War of 1870, the, 93, 94.
195 f.
French Company, the, see Panama Canal
Ems, the, 75.
Company.
Encyclopaedia Americana, the, 97. French Revolution, inspires a conception
Enforcement of laws conditional upon of popular liberty, 95 f.; remark of
public opinion, 27 f.
Lieber concerning, 102.
England, see Great Britain.
Friedland, battle of (1807), 96.
Erie Canal, the, 200.
Erwin, Mississippi, 52.
Galileo, apocryphal exclamation of, 174.
Europe, quarrels of, to be kept from Gallinger, Jacob H., American senator,
America, 121 ff.; armaments of, 138. 305 f., 345.
European War, the (1914–), 164; rela- Gama, Domicio da, Brazilian diplomat,
tion of, to the Ship Purchase Bill, 337- 409 i.
390; relation of, to international law, Gardner, Augustus Peabody, American
391-420; and the administration of
congressman, 436.
President Wilson, 434-447.
General Order No. 100 of 1863, 66, 67,
Everett, Edward, American statesman, 89–95.
97, 317.
Geneva Conventions, the, 173, 407.
Expatriation, right of, 168 f., 313–326. Germany, 78, 109, 111, 117, 126, 165,
Explosivistas, 303.
170, 176, 228, 272, 273, 299, 308, 332,
Ezuero, province, 191.
365, 367, 368, 369, 370, 371, 372, 379,
378, 380, 381 f., 383, 386, 387; idle
Falaba, the, torpedoed, 437.
German ships in American harbors,
Faultfinders, perennial, an incident of 357 f., 370; submarine warfare of,
free institutions, 177.
436-440, 447; attack upon Belgium,
Federalist, The, 39.
440–446.
Federation of the world, dreams of, 143 f. Ghent, 63, 101.
Feeling, matters of, as causes of war, 147, Golden Rule, the, as a guide of American
324 f.
diplomacy, 109.
Ferdinand VII, king of Spain (1814- Grant, President, 236.
1833), 106.
Great Britain, 66 f., 71, 75 f., 76, 80, 82 1.,
Ferneck, Alexander von, professor at 111, 170, 176, 316, 318, 319, 320, 332,
Vienna, 379 ff.
358, 365, 367, 369, 371, 372, 373, 378,
Feudal system, the, in Japan, 22.
379, 380, 383, 385, 386, 387, 388, 422,
Field, David Dudley, American jurist, 484; relations of, to the Monroe Doc-
62, 63, 100, 405 f.
trine, 106, 107, 109, 112, 117, 181 f.;
456
INDEX
power, 133 f.
to Germany, 111; attitude of, regard- | Heis, American diplomat, 211.
ing Agadir, 165; and the question of Henry IV, king of France (1589-1610),
Panama tolls, 207-312; and the ques- 136.
tion of contraband, 389 f.
Hilliard, Francis, American jurist, 97.
Great Lakes, the, 213, 267.
Hipsang, sinking of the, 76.
Greece, 96, 97, 180; cases of the Vasilios History, rewriting of, 173.
and the Aghios Georghios, 381. Hitchcock, American general, 90, 91.
Greek War of Independence, the, 96 f. Hohenzollern candidature for the Span-
Grey, Sir Edward, British minister, 77, ish throne, the (1870), 111.
207, 230 f., 249 f., 300.
Holland, 170, 435. See Netherlands.
Greytown, see San Juan de Nicaragua. Holy Alliance, the, 106 f.
Grotius, Hugo, Dutch jurist, 100, 101, Honduras, 299.
156, 402.
Hong-Kong, 299.
Guatemala, 176.
House of Commons, resolution of, in
Guerillas, Lieber on, 90.
favor of arbitration (July 16, 1893),
Gulflight, the, torpedoed, 437 f.
235, 238.
Huerta, Victoriano, Mexican ruler, 327–
Hadrian, Roman emperor (117–138), 335, 429-433.
101.
Hughes, William, American senator, 346.
Hague, The, conferences at, 30, 93 f., Humanitarianism, defects and merits of,
102, 103, 107, 147, 160, 162 f., 407; 132 f.
First, in 1899, 65, 67 f., 73, 126, 129, Humanity, sentiment of, as a leading
135, 144, 159, 234, 399, 408; Second,
in 1907, 68 f., 70, 78, 84, 107, 129–144, Hungary, immigration from, 320.
145, 161, 234, 238, 292, 364, 384, 397; Hurtado, Panaman diplomat, 196.
Third, proposed, 69, 163.
Hague Convention, the, for the Pacific Idaho, 209.
Settlement of International Disputes, Idealism, strain of, in the American na-
118, 119, 159, 315, 399 f.
ture, 134, 440 f.
Halifax, Nova Scotia, 229, 299. Impartiality, not to be expected from
Halleck, American general, 90, 91.
executive and administrative officers,
Hamburg-American Line, the, 383.
36 f., 132.
Hamburg trade, the, 383.
Independent sovereignty, the fundamen-
Hamilton, Alexander, 33 f., 39.
tal principle of international law, 113;
Handbuch des Völkerrechts, 379.
practical limitations of, 115 ff., 180 f.
Hanna, Marcus Alonzo, American sena- Indian children, separate schools for, 10.
tor, 216.
Innes, Mitchell, 300.
Hanover, 317.
Institut de Droit International, see Insti-
Harrison, President Benjamin, 53, 237. tute of International Law.
Harte, Bret, 51.
Institute of International Law, the, 63,
Hartsuff, American general, 90.
68, 93, 101, 102, 408, 414.
Hawaii, 299.
Insults, as causes of personal and na-
Hay, John, American statesman, 153, 175, tional quarrels, 324 f.
198, 201, 234 f., 247 f., 256, 257, 259, Intelligence, general diffusion of, 44.
263, 264, 271, 272 ff., 275, 276, 279, International Bureau of Weights and
280, 281, 286 f., 288, 294, 295, 307, 308, Measures, establishment of (1875), 65.
309, 311 f.
International Committee of Geneva, 101.
INDEX
457
International conduct, standard of, 35 f. Justice, revered by the founders of the
International court, proposed, 396–402. American Union, 40; conformity to,
International law, private codification of, the unquestionable standard of inter-
57-72; independent sovereignty the national conduct, 35 f.
fundamental principle of, 113; limita- Justinian, 91.
tions on this principle, 115 ff., 180;
study of, necessary to avert dangers of
Kent, James, American jurist, 316.
democratic control, 5 f., 163 ff.; inter-
Kenyon, William Squire, American sena-
national school of, to be established at
The Hague, 164 f.; outlook for (1915), Khedive, the, see Ismail Pasha.
tor, 304 f.
391-403; Declaration of the Rights King, American diplomat, 192, 194.
and Duties of Nations (1916), 413–
Knight Commander, sinking of the, 76.
426. See Law of nations.
Korea, American force in (1904), 205.
International Law Association, 63 f.
Korean children, separate schools for, in
International Naval Conference, see Lon-
California, 10.
don, Conference of.
Kriege, Johannes, German delegate,
International police force, idea of a, 157.
372 f., 375.
International Prize Court, Convention
Kurihama, town in Japan, 22.
for, 70, 72–78, 82-87.
International public opinion, 28–32. See
Opinion.
Labor, fluidity of, 44.
International societies, multiplication of, Labrador, 209.
64 f.
La Fontaine, Henri, director of the Inter-
Ireland, 317.
national Bibliographical Institute at
Ismail Pasha, khedive of Egypt (1863– Brussels, 167.
1879), 283, 284.
Lake Mohonk Conference, the, 3.
Isolation, breaking down of, 29, 166., 171. Lansdowne, Lord, British minister,
Italians, lynched, 52, 53.
247 f., 256, 280, 295, 307 f.
Italy, 71, 78, 117, 170, 176, 308, 320, Lansing, Robert, 384 f., 434.
332, 365, 380, 381.
Laodicea, 101.
Law of nations, 58; new era in, 69;
Jamaica, 210.
formerly existed for Europe alone,
Japan, 8-23, 46, 71, 76, 78, 154, 170, 176, 107; described by Lord Mansfield,
365.
161 f., 393; assertion of Sir Edward
Jefferson, Thomas, on the Monroe Doc- Carson concerning, 391; violated by
trine, 108.
the attack on Belgium, 442-447. See
Jena, battle of (1806), 96.
International law.
Jena, university of, 96.
Lawrence, William Beach, American
Jews, 313, 321.
jurist, 63.
Johnson, Cone, solicitor of the American Laybach, Congress of (1821), 106.
State Department, 361 f., 363, 366, Leeward Islands, the, 210.
367, 368, 369, 371, 373.
Lesseps, Ferdinand de, 185.
Jomini, Baron, Russian delegate, 93. Liberalism, reaction against, in Europe,
Judicial Arbitral Court, creation of, 106.
recommended, 84.
Lieber, Francis, 66, 67, 89–103.
Judicial o. diplomatic action in arbitra- Lincoln, Abraham, 66, 89, 93, 94, 174,
tion, 142.
259, 422.
458
INDEX
434.
Lind, John, agent of President Wilson, Maurtua, Peruvian savant, 409.
429.
Media sententia, 81.
Lodge, Henry Cabot, American senator, Mediation, right and duty of, 118 f., 401.
304, 318, 327, 333, 341, 345, 354, 357, Mediterranean, the, extension of Russian
386, 436.
power towards, 111; submarine at-
Lövland, president of the Nobel Prize tacks in, 439.
Committee, 153.
Mexican Claims Commission, the, 98.
L'Office Central, the, at Brussels, 167. Mexican Resolution, the (1914), 327–
London, 299.
335.
London, Conference of (1908), 70 f., 78- Mexicans, lynched, 52.
87, 363, 364, 365, 367 ff., 382, 398. Mexican War, the, 209.
London, Declaration of (1909), 79–87, Mexico, 109, 110, 114, 117, 153, 174, 199,
365-384, 398.
209, 228 f., 299, 442; American rela-
Louis XIV, king of France (1643–1715), tions with, 1913–1916, 327-335, 428-
349.
Lowell, James Russell, American author Michigan, Lake, 268.
and diplomat, 222.
Middle Ages, the, 418.
Lusitania, the, torpedoed, 437f., 439,445. Milan Decree, the (1807), 75.
Miles, James B., secretary of the Ameri-
McAdoo, William Gibbs, American cabi- can Peace Society, 63.
net officer, 351, 352, 353, 357 f., 359, Minority, courage and persistency of a,
360, 384, 385.
the bulwark of liberties, 350.
McCumber, Porter James, American Mobility of mankind, the new, 29, 44,
senator, 282,
166 f.
McKinley, President William, 153, 175, Mobilization as a justification for im-
238, 309.
mediate war, 111.
McLean, George Payne, American sena- Mob violence, outrages on foreigners by,
tor, 257.
50.
McLean, Thomas Chalmers, American Moe, secretary of the Nobel Prize Com-
naval officer, 204.
mittee, 153.
Magdalena, Colombian state, 191. Mongolian subjects of Russia, 323.
Mallarino, New Granadan diplomat, Monroe Doctrine, the, 165, 180 f., 182,
181 f., 186.
189, 425 f.; defined, 105–123.
Mansfield, Lord, 58, 161 f., 393.
Monroe, President James, 109, 112, 113,
Marcy, William Learned, American 120, 121, 122, 425; his message of
statesman, 317.
Dec. 2, 1823, 105 f.
Marne, battle of the (1914), 435. Moral isolation, dread of, by govern-
Marroquin, José Manuel, Colombian
ments, 30 f.
ruler and savant, 197, 198.
Morality, obligations of, nations must
Marshall, John, American jurist, 19. submit to, 494.
Martens, Frederick de, Russian publicist, Morocco, 46, 111, 165.
320; on Lieber, 94.
Mosquito Coast, British protectorate
Martindale, American general, 90.
over the, 210, 211, 212, 216.
Maryland, 15, 19.
'Most favored nation' provision, the,
Mason, James Murray, Confederate 16, 252 f., 254, 255, 259 f.
commissioner, 80, 388, 422, 423. Mouravieff, Count, Russian minister, 67.
Massachusetts, 16, 40.
Municipal law, codification of, 59.
INDEX
459
Namur, battle of (1815), 96, 103. Notes, of the American government to
Napoleon, 75, 96, 418.
Germany, 436_440, 445–447.
Napoleonic wars, the, 435.
Nova Scotia, 209.
Nashville, the, at Colon, 202, 203. Nunez, Rafael, Colombian statesman,
Nations, law of, see Law of nations.
192 ff.
Naval Conference of London, see Lon- Nys, Ernest, on Lieber, 95.
don, Conference of.
Naval War College, the, 378.
O'Gorman, James Aloysius, American
Netherlands, the, 71, 78, 176, 365, 380. senator, 256, 361.
See Holland.
Oliver, George Tener, American senator,
Neutral flag, in the Declaration of Paris, 347.
78.
Olney, Richard, American secretary of
Neutralization, of the Suez and Panama state, 217, 271, 301 f.
canals, 219 f., 244 f.; of the Panama 'Open door,' the, in China, 272 f.
canal, 274-279.
Opinion, power of, 135, 167 ff., 396, 402 f.
Neutral merchandise, in the Declaration Orders in Council, the, 75.
of Paris, 78.
Oregon, 209.
Neutral territory, inviolability of, 392. Oregon boundary, the, 209.
New Brunswick, 209.
Orient, passage to the, sought by early
Newfoundland, 209, 297, 301.
navigators, 179.
New Granada, 181–184, 189, 190 f., 216, Oriental Public School, the, in San Fran-
217, 243, 266. See Colombia.
cisco, 10.
New Orleans, 52, 53.
Ostend, 386.
New York, city and port, 16, 97, 101, Ottawa, 303.
294, 299, 356, 370.
New York, state, 16, 40, 200; Republi- Pacific railroad companies, bonds of, 249.
can state convention of 1916, address Palmerston, Lord, 49, 210, 261.
of Mr. Root at, 427-447.
Panama, city, 194, 202, 203, 204.
New Zealander, the typical, 178. Panama, republic, 230; revolt of, from
Nicaragua, 176, 211, 220 f., 224, 264, Colombia, 175–206; treaty with the
268, 295, 299.
United States (1903), 224, 225 ff.
Nicaragua Canal route, the, 210, 268, Panama, Bay of, 121, 179.
295.
Panama Canal, the, 121, 154; and the
Nicholas II, czar of Russia (1894–), 67, Panama revolt, 175-206; the ques.
136, 408.
tion of tolls, 207-312.
Niebuhr, Barthold Georg, German diplo- Panama Canal Act, the (Aug. 24, 1912),
mat and historian, 97.
207-312.
Nippold, Otfried, German scholar, 164. Panama Canal Company, the, 185, 187,
Nobel, Alfred, Swedish scientist, 153, 188, 189, 258, 263.
154, 172.
Panama Congress, the (1826), 223.
Nobel Institute, the, at Christiania, 153, Panama Railroad, the, 176, 185, 202 ff.,
154.
247, 262.
Nobel Prizes, the, 153.
Panama Railroad Company, the, 247,
North German Confederation, the, 319. 249, 262.
North German Lloyd Line, the, 383. Pan-American Bureau, the, 163.
North Germany, 100.
Pan-American Conference, Pan-
Norway, 176, 319.
American Congress.
see
460
INDEX
Pan-American Congress, First, at Wash- Policy, questions of, as causes of war,
ington, 234, 236, 237.
146, 165-168, 394, 398.
Pan-American Congress, Second, at Polk, President James Knox, 182; states a
Mexico, 234.
corollary to the Monroe Doctrine, 112;
Pan-American Congress, Third, at Rio de on the New Granadan treaty of 1846,
Janeiro, 114 f., 153, 234, 410.
183, 266.
Pan-Americanism, 153.
Portland, Maine, 229, 299.
Pan-American Scientific Congress, Seco Portland, Oregon, 229.
ond, 184, 405, 409 ff., 413.
Portugal, 176; the Delagoa Bay case,
Paris, Declaration of (1856), 66, 78, 162, 385 f.
406.
Practical administrator, value of the,
Paris, Parliament of, 349.
132 f.
Paris, Peace of (1856), 66, 99.
Privateering, abolished by Declaration of
Parliament of man, dreams of, 143, 157. Paris, 78.
Patriotic societies, in Germany, 96. Prize Court Bill, rejected, 83.
Pauncefote, Julian, British diplomat, Professors, under the Roman empire,
140, 257, 271 f., 276, 280, 288.
101.
Pax Romana, 395.
Protection, national, problem of, 122.
Peaceful interpenetration, 45.
Protection to citizens residing abroad,
Peace-loving and peace-keeping charac- 43-56.
ter, steady development of, 144. Prussia, 16, 96, 97, 100.
Peace propaganda, methods of, 155. Prussian Decree, the (1806), 75.
Peace, universal, the object of the Hague Public opinion, education of, 8, 164.
conferences, 144.
Peking, 47, 205.
Quebec, province of, 209.
Pennsylvania, 16, 40.
Permanent Court, the, at The Hague, Race prejudice, 170, 321-323.
159 ff.
Rayner, Isidor, American senator, 314,
Permanent judges, court of, needed for 318, 321.
arbitration, 142, 145, 149–152.
Rebus sic stantibus, 391.
Perry, Matthew Calbraith, American Red Sea, the, 231.
naval officer, 22.
Renault, Louis, professor of international
Persia, the, destroyed, 439.
law at Paris, 165; report of, 80 f.,
Personal rights, how limited, 115.
375 ff., 380.
Peru, 176.
Republican party, the, 436.
Philadelphia, 16, 294, 299, 370.
Reyes, Rafael, Colombian general, 198 f.
Philip II, king of Spain (1556–1598), Right and duty, connection of, 102, 127 f.
179.
Rio Grande, the, 209.
Philippines, the, 153, 206.
Rives, William Cabell, American diplo-
Phillips, William, American diplomat, mat, 210, 215, 261.
300.
Robber baron, days of, have passed, 166.
Pike County Ballads, by John Hay, 259. Rock Springs, Wyoming, 52.
Pilotage regulations, 298.
Rolin-Jaequemyns, circular letter of, 101.
Pitt, William, the younger, 75.
Roman Empire, the, 418.
Polemon of Laodicea, traveling professor Roman proconsul, days of, have passed,
in the second century, 101.
166.
Poles, the, 195.
Rome, 101.
INDEX
461
Roosevelt, Theodore, 85, 153, 201, 224, Scott, Winfield, American general, 91.
262, 263, 265, 276, 289, 309, 436; on Seattle, 299.
the Monroe Doctrine, 114 f.; on arbi- Self-protection, national right of, 111.
tration, 238, 303, 305; on the Hay- Sentiment, in international relations,
Bunau-Varilla Treaty, 257 f., 259. 112, 430.
Rouse, Colorado, 52.
Separatist policy of Washington, import-
Rush, Richard, American diplomat, 106, ance of, 122.
120.
Servia, 387.
Russia, 71, 76, 78, 99, 111, 176, 272, 299, Seward, William Henry, American
308, 365, 367, 368, 369, 370, 371, 380, statesman, 110, 114, 117, 268.
383, 387; claims of, in America, 106, Ship Purchase Bill, the, 337-390.
107; treaty of 1832 with, 313-326. Ship registry bill, the, 362.
Russia, czar of, see Nicholas II.
Ship subsidies, 249 f., 351, 355.
Russia, emperor of, see Alexander II, Shively, Benjamin Franklin, American
Nicholas II.
senator, 335.
Siberian ports, the, of Russia, 299.
St. Clair Flats Canal, the, 213.
Sidney, Sir Philip, 174.
Saint Kilda, sinking of the, 76.
Simmons, Furnifold McLendel, Ameri-
St. Lawrence, river, 267, 268.
can senator, 257, 353, 358, 362.
St. Lawrence Canal, the, 213.
Sims, Thetus Wilrette, American con-
St. Lawrence, Gulf of, 209.
gressman, 208.
St. Louis, 360.
Slidell, John, Confederate commissioner,
Salisbury, Lord, 257, 259, 264; on arbi- 80, 388, 422, 423.
tration, 140 f.
Smyrna, 101.
Salute, demanded from Mexico, on ac- Smyth, American citizen, injured by a
count of Tampico affair, 329–335, 431f. mob in Brazil, 52 f.
Sanclemente, M. A., Colombian presi- Soil, severance from the, 29, 44, 166 f.
dent, 197, 198.
Solicitor of the State Department, the,
Sanction of international law, the, 25–32. see Johnson, Cone.
San Francisco, 154, 299; and the Japa- Sosa, Panaman savant, 196.
nese question, 9-23.
South America, struggle for independ-
San Jacinto, the, 422, 423.
ence in, 107, 112; misunderstanding of
San Juan, island of, 301.
the attitude and purposes of the
San Juan, river in Central America, 210. United States in, 114; importance of
San Juan de Nicaragua, or Greytown,
the Monroe Doctrine to, 122 f.; de
210.
velopment of arbitration in, 142, 236;
Santander, Colombian state, 191.
visited by Secretary Root, 153, 410;
Sault Sainte Marie, canal at, 246, 294. trade with, 351 f., 385.
Saunders, Edward Watts, American con- South Carolina, 16.
gressman, 357 f.
South Carolina College, Lieber at, 97.
Savagery, 139, 444.
Sovereign rights, how limited, 116 ff.,
Sawyer, Justice, 17.
180.
Scharnhorst, Prussian statesman, 96. Spain, 71, 78, 106, 109, 111, 117, 179,
Schill, Prussian officer, 96.
283, 385.
Schools of California, Japanese in, 9-23. Spanish provinces in America, revolt of,
Scott, James Brown, 125, 126, 129, 145, 106.
413.
Spanish War, the, 153, 263.
462
INDEX
Spheres of influence,' 272 f.
Tirpitz, Alfred von, German admiral and
Spooner, John Coit, American senator, minister, 382.
216, 309.
Tocqueville, Alexis de, French statesman
Squier, Ephraim George, American au- and writer, 310.
thor and diplomat, 211.
Tolima, Colombian state, 191.
Stanton, Edwin McMasters, American Tolls, Panama Canal, question of, 207–
statesman, 90.
312.
Stein, Prussian statesman, 96.
'Too proud to fight,' 439.
Stimson, Henry Lewis, American cabinet Torres, Colonel, Colombian officer, 203.
officer, 436.
Torture, of witnesses or of criminals, now
Stone, William Joel, American senator, unthinkable, 173.
339, 342, 343, 344, 349.
Traité de droit international, by Martens,
Story, Joseph, American jurist, 19, 97, 320.
98, 316.
Transportation, cheapness and ease of,
Strasburg, 101.
44.
Sturdza, Demetrius, Roumanian scholar, Trave, the, 75.
164 f.
Treaties: of Berlin (1878), 111; the Prize
Submarine warfare, 436–440, 447.
Court Treaty, 364, 397 f.; of San Stef-
Suez Canal, the, 219, 245, 265, 282 ff., ano (1878), 111; on the Slave Trade
299.
(1890), 65; the Ship Canal Treaty
Suez Convention, see Constantinople, (1909), 175; of the United States of
Convention of.
America, with the Argentine Confeder-
Sultan, the, see Abdul-Aziz.
ation (1853), 253 ff.; with Austria-
Sumner, Charles, American statesman, Hungary (1870), 319; with China (the
97, 99, 100.
Burlingame Treaty, 1868), 16 f.; with
Supreme Court, the, 17, 18, 19, 40 f., 369. Colombia (1868), 268 f.; (1870), 269;
Survival of the fittest, law of the, 156. (Hay-Herran), 295 f.; with Denmark
Sutherland, George, American senator, (1872), 319; with France (1778), 15 f.;
289, 290, 304, 377, 380.
with Great Britain (1783), 18; (1818),
Sweden, 176, 319.
297; (Webster-Ashburton, 1842), 4,
Switzerland, 170, 176, 435.
209; (Clayton-Bulwer, 1850), 210–213,
Sympathy, in international relations, 214-219, 222, 223, 224, 225, 244, 248,
112.
256, 261, 262, 264, 266 f., 271 f., 274 f.,
277–282, 300, 307; (of reciprocity,1854),
Taft, President, 249, 303, 304, 313. 267 f., 294; (May 13, 1870), 319; (of
Tallulah, Louisiana, 52.
Washington, 1871), 66 f., 68, 213 f.,
Tampico, 299, 329-335, 431 f.
269 f., 291, 294, 406 f.; (Hay-Paunce-
Tehuantepec, isthmus of, 212, 277. fote, 1901), 207, 217–235, 243–312; (of
Texas, 209.
arbitration, 1908), 232, 300; (1909),
Thayer, Martin Russell, American jurist, 294; with Japan (1854), 21 f.; (1894),
100, 102.
7-23; with Mexico (Guadalupe-Hidal-
Thirty Years' War, the, 402.
go, 1848), 209; with the Netherlands
Thouvenel, Edouard Antoine, French (1782), 16; with New Granada (1846),
minister, 423.
182 ff., 185, 216, 224, 243, 262, 266;
Thucydides, remark of, on property at with Nicaragua (Heis), 211; (Squier),
211; (1867), 268, 295; with Panama
Tilsit, Peace of (1807), 96.
(Hay-Bunau-Varilla, 1903), 224, 225
sea, 100.
INDEX
463
fi., 243 f., 257, 296, 309; with Prussia | War, continual recurrence of, 155; uni-
(1786), 16; with Russia (1832), 313– versally increasing preparations for.
326; with Sweden and Norway (1869), 155; avenue to all that mankind de-
319.
sired, 156; causes of, classified, 146 f.
Treaty-making power, the, in the United War of 1812, the, 75.
States, 11-23.
Washburn, Emory, American statesman,
Trent affair, the, 80, 99, 422 ff.
63.
Trinidad, 210.
Washington, state, 209.
Tripartite Agreement, the, failure of., Washington, George, 114, 122, 174, 291;
175, 309.
Farewell Address of, 121.
Tripoli, 174.
Watchful Waiting, policy of, 433.
Turkey, 46, 48, 229, 230 f., 284, 295, 296, Waterloo, battle of (1815), 96.
381, 439.
Weak states, protection of, against the
strong, 113, 115, 132, 401, 409.
United States of America, the, 66 f., 71, Webster, Daniel, 4, 317; on the Monroe
78, 85 f., 94, 97, 100, 126, 170, 406, Doctrine, 108.
410, 420, 422 ff.; and the Monroe Doc- Weeks, John Wingate, American senator,
trine, 105–123, 165, 425 f.; and the 345.
Panama revolt, 175-206; obligations Welland Canal, the, 213.
of, as to Panama tolls, 207–312; rela- Weser, the, 75.
tions with Russia, 313–326; with West Indies, the, 47.
Mexico, 327-335, 428–434; the Ship Westlake, John, remarks of, in the Nine-
Purchase Bill, 337–390; foreign affairs, teenth Century, 81 f.
1913–1916, 427-447; relations to the Westphalia, Peace of (1648), 418.
European war, 434-447; the question White, Andrew Dickson, American edu-
of Germany, 436–447; need of military cator and diplomat, 100, 125, 126, 273.
and naval preparation, 434 ff., 447; a White, Henry, American diplomat, 256
government' too proud to fight,' 439; f., 259, 263, 264, 271.
the true spirit of the American de Wilkes, Charles, American naval officer,
mocracy, 440 f.
80, 422, 423.
William II, German emperor (1888-),
Vancouver, British Columbia, 299.
382.
Varilla, see Bunau-Varilla.
William the Silent, 174.
Venezuela, 109, 117 f., 119 ,176, 190; Williams, John Sharp, American senator,
boundary controversy, 263, 301 f. 248, 284, 285, 305 f., 308, 345, 370.
Vera Cruz, 229, 299, 330, 335, 429, 431, Williams, William Elza, American con-
432 f.
gressman, 385.
Veraguas, province, 191.
Wilson, President Woodrow, 207 f., 303
Veritas carissima, 102.
f., 354; and the Mexican Resolution
Verona, Congress of (1822), 106.
(1914), 327–336; foreign policy of
Victoria, British Columbia, 229.
(1913–1916), 427-447.
Villa, Francisco, Mexican chief, 430, Windward Islands, the, 210.
432.
Woolsey, Theodore Dwight, American
Virginia, 18, 19, 40.
educator, 63, 98.
Walsh, Thomas James, American sena-Yorktown, 369.
tor, 338, 378 f.
Yucatan Bill, the (1848), 110.
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